ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:      6 May 2019

	DOCKET NUMBER:  AR20170006950


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge 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 since his discharge from the Army, he has been an upstanding member of his community.  He has a few decent friends in whom he does productive yet fun things with. 

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

	a.  He enlisted in the Regular Army (RA) on 14 April 1998.

	b.  He reenlisted in the RA on 14 September 2000.

	c.  On 25 February 2002, court martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) indicates he was charged with two specifications of wrongfully using methamphetamines.

	d.  On 6 March 2002, the applicant consulted with legal counsel who advised him of his rights.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, (Discharge in Lieu of Trial by Court-Martial).  In his request for discharge, he acknowledged:   

* maximum punishment
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service

	e.  In his request for discharge, he elected to submit a statement.  In his statement, he stated:

* he was recruited into the Army from California, he was married and taking care of his wife and her daughter and has joint custody of his son
* he served proudly in Germany
* he and his wife were thankful for everything that the Army was able to provide their family
* he requested a characterization of service as general, under honorable conditions

	f.  Consistent with the chain of command recommendations on 15 March 2002, the separation authority approved the applicant’s request for discharge.  He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.

	g.  On 9 April 2002, he was discharged from active duty under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 3 years, 11 months, and 26 days of active service.  It also shows he was awarded or authorized Army Achievement Medal, Army Good Conduct Medal, and Army Service Ribbon.

4.  By regulation, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate for a Soldier who is discharged for the good of the service.

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 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 warranted.  Based upon the applicant completing his first term of service without any form of misconduct and the type of misconduct resulting in discharge being of a nonviolent nature (drug use), as well as the passage of time, the Board concluded that granting clemency by upgrading the characterization of service of the applicant to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).

2.  Prior to closing the case, the Board noted the administrative notes below by the analyst of record and recommend those changes also be completed to more accurately depict the military service of the applicant.
	 
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.


ADMINISTRATIVE NOTE(S):

A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block.  As a result, amend the DD Form 214 by:

* adding in item 18 the entry “Continuous honorable service 19980414 to 20000913”
* deleting from item 18 the entry “Immediate Reenlistments This Period 19981127-20000913” and adding “Immediate Reenlistment This Period 19980414-20000913”

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 10 of the regulation in effect at the time (and the version currently in
effect) provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

b. Paragraph 3-7a of the regulation currently in effect provides that an honorable 
discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 of the regulation currently in effect provides 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.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment).

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)	 AR20170006950


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