ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170006569


APPLICANT REQUESTS:  an upgrade to his under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* a personal appearance before the Board

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states during the time of service he was stationed in Bamberg, Germany.  He was a young father with a wife and two sons back in the United States.  His family was going through a very difficult hardship and they needed him to come home and help taking care of them.  He requested an early discharge and was granted a general under honorable condition.  This is the only blemish on his record.  He’s a proud member of the Philadelphia fire department for over 16 years and he was very proud to have served his country.  The Board’s consideration in this matter will be greatly appreciated.  

3.  The applicant’s service record shows:  

	a.  Having had prior service in the Army Reserves, he enlisted in the Regular Army on 4 May 1988.

	b.  He accepted nonjudicial punishment:  

* on 30 December 1988, for failure to be at the appointed place of duty, and intoxicated while on duty, his punishment in part was reduction to E-2, suspended until 30 March 1989
* on 10 April 1989 the suspension of the punishment of reduction to E-2 imposed on 30 December 1988 was vacated based on driving while intoxicated on 23 March 1989
* on 12 April 1989, for driving while intoxicated

	c.  He received two general officer letter of reprimands for driving while intoxicated on 24 May 1989 and 9 November 1989.

	d.  The Special Court-Martial Order Number 6, dated 3 October 1989 charged the applicant with one specification of violation of a general regulation, driving while his POV license was revoked on 2 August 1989.  

	e.  The DA Form 4187, Personnel Action, dated 24 October 1989 shows that he was confined as a result of a Special Court-Martial, and was administratively reduced to E-1 upon confinement.  

	f.  He underwent a medical examination on 9 November 1990 and the examiner stated that he has the mental capacity to understand and participate in board proceedings for discharge.  

	g.  The applicant’s immediate commander advised him on 26 November 1990 of his intent to recommend him for administrative separation from the Army under the provision of paragraph 14-12c, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for acts or patterns of misconduct, commission of a serious offense.  He further advised him that he had the right to consult with legal counsel and the right to present his case before a board of officers, if he had 6 years or more of service.  

	h.  After consulting with legal counsel of the basis for the contemplated action to accomplish separation for drug abuse under the provisions of chapter 14, AR 635-200 and its effects, the right available to him, and the effect of any action taken by waiving his rights.  He acknowledged that he has the right to submit a statement on his own behalf, he elected not to submit a statement on his own behalf.  He could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued and he would be ineligible to apply for enlistment in the Army for a period of two years after discharge.

	i.  On 26 November 1990, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-200, paragraph 14-12c for acts or patterns of misconduct, commission of a serious offense.  He recommended a under honorable conditions discharge, general discharge.  

	j.  Consistent with the chain of command recommendations on 27 November 1990, the separation authority approved the request for discharge under the provisions of AR 
635-200, paragraph 14-12c for acts or patterns of misconduct, commission of a serious offense.  He directed he be issued a general discharge certificate.

	k.  The applicant was discharged from active duty on 10 December 1990 under the provisions of AR 635-200, paragraph 14-12c for misconduct, the commission of a serious offense, SPD JKQ.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his characterization is under honorable conditions, general.  He completed 2 years and 6 months and 26 days of active service this period.  He had lost time from 11 September 1989 to 21 September 1989.  

4.  By regulation 635-200, paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

5.  By regulation 635-5-1 (Personnel Separations-Separation Program Designators), members are subject to, separation code JKQ is appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation.

6.  In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

7.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  AR 635-200, in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate .when the quality of the member's service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	b.  Chapter 14 -12c of that regulation provides that members are subject to separation for commission in a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation.

3.  AR 635-5-1 states that the separation program designator (SPD) code is used in statistical accounting to represent the reason for separation.  

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

ABCMR Record of Proceedings (cont)	 AR20170006569


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