ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170007930 APPLICANT REQUESTS: * a change to his narrative reason for discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Divorce Decree 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 the breakdown of his martial relationship and associated financial hardship were the reasons for his discharge and not his misconduct. 3. A review of the applicant’s service record shows: a. On 20 May 1997, he enlisted in the Regular Army (RA). b. On 9 January 1998, the applicant accepted non-judicial punishment (NJP) for failure to be at his appointed place of duty. He was reduced to E-1, 14 days extra duty and 14 days restriction. c. On 30 January 1998, the applicant accepted NJP for disobeying a lawful order. He received 14 days extra duty, 14 days restriction and forfeiture of pay $210.00 for one month. d. On 10 February 1998, his immediate commander notified him that he intended to initiate action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12b (Patterns of Misconduct) for numerous negative counseling and bad check indebtedness. Subsequently, the applicant acknowledged receipt of this action. e. The applicant was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for acts or patterns of misconduct, under paragraphs 14-12b, of AR 635-200 and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He acknowledged: * he may encounter substantial prejudice in civilian life if a general discharge under honorable condition is issued * he if received a discharge certificate/character of service which is less than honorable, he could make an application to the Army Discharge Review board or the Army Board for Correction of Military Records f. Consistent with the chain of command’s recommendations, the separation on 18 March 1998, the separation approval authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14-12b. He was furnished a General Discharge Certificate. g. The applicant was discharged on 31 March 1998, in accordance with chapter 14, AR 635-200, with an under honorable conditions characterization of service. h. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 12 days of active service with lost time from 3 March to 31 March 1998. 4. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under honorable general conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 5. In regards to the applicant’s request for an appearance before the Board, AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 it could make a fair and equitable decision without a personal appearance by the applicant. The Board also found that relief was not warranted. Based upon the short term of service completed prior to the pattern of misconduct, the Board found no error or injustice which would warrant the changing of the narrative reason for separation. The applicat provided mitigating evidence for the misconduct, but the Board concluded that the current narrative reason depicted on the DD 214 accurately depicts the cause for separation. 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. Chapter 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 clearly inappropriate. b. Chapter 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 14 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 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) AR20170007930 4 1