ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170006573


APPLICANT REQUESTS:  an upgrade of her general, under honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 that it has been over 20 years since she separated from active duty, she is a home owner and productive tax paying citizen.  She states that over the past 17 years she has been a Legal Secretary in the intellectual property field, a single mother of 1 son who is now on active duty in the Navy.  She is honored to have had the opportunity to serve this great country and she asks that her service be deemed worthy and honorable.

3.  A review of the applicant’s service record shows:

	a.  She enlisted into the Regular Army (RA) on 19 February 1992.  She held military occupation specialty 63B (Light Wheeled Mechanic)

	b.  She served in Germany from 14 March 1995 to 13 March 1996.

	c.  She reenlisted in the RA on 8 April 1994 for 3 years.

	d.  On 14 December 1995, she accepted nonjudicial punishment under Article 15 for wrongfully using marijuana; wrongfully appropriate 2 Compact Disc, of value of or about $50.00, the property of AAFES, Bad Kreuznach, Germany, and wrongfully possessing marijuana, a controlled substance.  Her punishment consisted of reduction to private (PV1)/E-1, forfeiture of $427.00 pay per month for two months, and extra duty for 45 days

	e.  	On 16 January 1996, her immediate commander notified her initiated of his proposed action to separate her for misconduct, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14, paragraph 14-12c.  The commander indicated that the reasons for the proposed action was the applicant’s wrongful use of marijuana on two occasions and grand larceny from Bad Kreuznach Post Exchange.

	f.  On 16 January 1996, she was advised by her consulting counsel of the bases for the contemplating action to separate her for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to her; and the effects of any action taken by her in waiving her rights.  She understood if she had less than six years total of active and reserve military service at the time of separation and am being considered for separation for misconduct under AR 635-200, Chapter 14, she is not entitled to have her case heard by an administrative separation board.  

	g.  On 16 January 1996, her immediate commander initiated separation action against her due to the wrongful use of marijuana on two occasions and larceny from Bad Kreuznach post exchange.  Her chain of command recommended approval with the issuance of a general, under honorable conditions discharge.

	h.  On 30 January 1996, the separation authority approved the applicants discharge under the provisions of, AR 635-200, Chapter 14.  He further ordered the applicant’s service be characterized with a general discharge certificate.

	i.  On 11 March 1996, the applicant was discharged from active duty with an other than honorable conditions discharge.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 4 years, 23 days of active service.  It also shows, she was awarded or authorized:

* Army Commendation Medal
* Good Conduct Medal 
* National Defense Service Ribbon
* Army Service Ribbon

4.  By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop her as a satisfactory soldier, further effort is unlikely to succeed. 

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  Based upon the pattern of misconduct, some involving criminal misconduct (misappropriation), as well as a lack of character evidence submitted by the applicant to show she has learned and grown from the events leading to her separation, the Board concluded that he 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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 12c states that commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual of courts martial.

	c.  Paragraph 3-7a (Honorable Discharge) states that 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.

	d.  Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

3.  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)	 AR20170006573


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