ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170007130


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

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 there was a personality conflict between himself and the acting First Sergeant of the unit.  He believes the First Sergeant went to unusual lengths to cause him to be reduced in grade and subsequently separated from the Army. 

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

     a.  He enlisted in the in the Regular Army on 22 February 1983.

   b.  He received non-judicial punishment on 2 September 1985 for using disrespectful language towards his superior Noncommissioned Officer and on 6 December 1985 for operating a vehicle while drunk and also not possessing a valid state driver’s license; his punishment consisted of reduction to Private First Class/E-3.

   c.  On 10 January 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, in effect at the time, for unsatisfactory performance.

   d.  On 10 January 1986, the applicant acknowledged receipt of the commander’s intent to separate him, and subsequently, consulted with legal counsel. He was advised of:

* the rights available to him and the effect of waiving said rights.
* he could expect to encounter substantial prejudice in civilian life if the general discharge under honorable conditions was issued to him
* he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge.
     
    e.  The separation authority approved discharge under the provisions of Chapter 13, AR 635-200, paragraph 13-2a, by reason of unsatisfactory performance and ordered his service be characterized as under honorable conditions (general).
    
f. He was discharged from active duty on 19 February 1986 with a general, under
 honorable conditions characterization of service.  His DD 214 reflects completion of 2 years, 11 months and 28 days of active service.  It further shows that he was awarded or authorized the:

* Army Service Ribbon
* Sharpshooter Qualification Badge with Pistol Bar

4.  By regulation, action will be taken to separate a member when it is determined that he is unqualified for further military service because of unsatisfactory performance.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 13.

5.  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.  
		
BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the misconduct, the applicant’s failure to provide character evidence to show that he has learned and grown from the events leading to his discharge, as well as the applicant already receiving a general discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service.


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 Separation – Enlisted Personnel), in effect at the time sets forth the basic authority 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.  Paragraph 3-7b (General Discharge) 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. 

  c.  Chapter 13 of this regulation provides action will be taken to separate an individual when it is determined he is unqualified for further military service because of unsatisfactory performance.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.  

ABCMR Record of Proceedings (cont)	AR20170007130


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