ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170006772


APPLICANT REQUESTS:

* upgrade his general, under honorable conditions discharge to honorable 
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 he is requesting a copy of his DD Form 214. He is asking is it possible for his discharge to be upgraded to honorable. 

3.  A Review of the applicant's service records shows:  

a. He enlisted in the Regular Army (RA) on 22 April 1986.

b.  His DA Form 2-1 (Personnel Qualification Record) shows:

* 22 September 1986, assigned to Fort Carson, Colorado 
* 1 February 1987, attained the rank of private first class (PFC)/E-3 

c.  On 1 June 1987, he accepted nonjudicial punishment (NJP) for wrongfully
appropriating, and through his neglect damaged a military vehicle at Fort Carson, Colorado on or about 15 April 1987.  He was reduced to private, PV2/E-2. 

d.  On 28 December 1987, he accepted NJP for failing to make a 0730 company
formation, and remaining absent until 1000 hours. 

e.  On 10 February 1988, he accepted NJP for disobeying a lawful command from
his commander, CPT X___, to be in the orderly room by 1630 hours on or about 28 January 1988.  He was reduced to private (PVT)/E-1). 

	f.  On 17 February 1988, he underwent a mental status evaluation that shows:

* normal behavior
* fully alert and oriented with mild depression
* clear thought process with normal content
* meets retention standards with no psychiatric disease or defect
* mentally responsible and able to distinguish right from wrong
* has mental capacity to understand and participate in board proceedings
* cleared for any administrative action deemed appropriate by the command

g. On 24 February 1988, the applicant’s commander vacated the suspension of
extra duty imposed on 10 February 1988.  The vacation was based on the applicant’s failure to report, without authority, at time prescribed to appointed place of duty, on or about 0830 hours on 17 February 1988.

h.  On 7 March 1988, the applicant’s immediate commander notified the applicant 
of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Chapter 14-12c, for committing serious offenses to include writing bad checks, failure to go to appointed place of duty, disobey a lawful order from a commissioned officer, missing numerous formations, poor duty performance, and overall lack of initiative.  The applicant acknowledged receipt of the notification on the same day.

i.  On 8 March 1988, he was advised by counsel of the basis for the contemplated
action to separate him under the provisions of AR 635-200, chapter 14, paragraph
14-12c for commission of a serious offense, and its effects of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged:

* he did not want to submit statements in his own behalf
* he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued
* he understood if he received a discharge certificate/character of service which is less than honorable he could apply to the Army Discharge Review Board (ADRB) or the Army Board of Correction of Military Correction for upgrading
* he understood that an act of consideration by either board does not imply that his discharge would be upgraded

	j.  Consistent with the chain of command recommendation, on 15 March 1988, the separation authority approved the applicant’s discharge and directed he be issued a General Discharge Certificate.
   k.  The applicant was discharged on 21 March 1988.  His DD Form 214 shows:
   
* block 12c (Net Active Service) completed 1 year, 11 months of active service
* block 24 (Character of Service) under honorable conditions characterization of service
* block 28 (Narrative Reason for Separation) misconduct – commission of a serious offense
* block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons) awarded or authorized the Army Service Ribbon, Marksmanship Badge (Rifle M-16), and Expert Badge (Hand Grenade). 

4.  The applicant’s record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of separation.

5.  By regulation, separations under the provisions of AR 635-200, Chapter 14-12, provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

6.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the pattern of misconduct which led to the separation and the applicant already receiving a General Discharge, the Board concluded that there was no error or injustice present which would warrant making a change to the characterization of service.

The Board did recommend providing the applicant with a new copy of his DD Form 214, when providing a copy of these proceedings.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that a copy of the applicant’s DD Form 214, dated 21 March 1988, be provided to the applicant.
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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.  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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14-12 of the regulation deals with separation for various types of misconduct, which includes minor disciplinary infractions, patterns of misconduct, and commission of a serious offense.  It provides that individuals are subject to separation for the commission of a serious offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a close related offense. 

	b.  Paragraph 3-7a (Honorable Discharge) 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.

	c.  Paragraph 3-7b (General Discharge) 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)	 AR20170006772


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