ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170008119


APPLICANT REQUESTS:  an upgrade of his general under honorable conditions discharge to 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 it has been 32 years since he was discharged.  He was told by the Personnel Actions Command (PAC) Noncommissioned Officer that there was not enough evidence to discharge him for the misconduct.  However, due to his immaturity and the fact that he disliked his duty station he just let the discharge go through without appeal.  Looking back over it through the years he deeply regrets not appealing the discharge at the time it happened. 

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

	a.  He enlisted in the Regular Army on 24 November 1982.

	b.  He accepted nonjudicial punishment (NJP) on/for: 

* 24 August 1984, for two specifications of failing to be at his appointed place of duty; his punishment consisted of 14 days extra duty and 7 days of restriction
* 12 December 1984, two counts of wrongful use of marijuana his punishment consisted of reduction to E-3, forfeiture of $171.00 for one month 14 days extra duty and 14 days restriction 
* 6 March 1985, wrongful use of marijuana, his punishment consisted of reduction to E-2, forfeiture of $162.00 and 14 days extra duty 

	c.  On 7 March 1985, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c (Commission of a serious offense), for having received two Article 15’s for illegal use of marijuana and one Article 15 for two specifications of Article 86, UCMJ.

	e.  On 7 May 1985, he was advised by counsel of the basis for the contemplated separation action under the provisions (UP) of AR 635-200, paragraph 14-12c, the effect on future enlistments in the Army, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  

* he acknowledged he understood if he were issued a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and state laws
* he acknowledged he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf 

	f.  Consistent with the chain of command recommendation on 7 March 1985, the separation authority approved the discharge under the provisions of paragraph 14-12c, AR 635-200 and directed the applicant be furnished a General Discharge Certificate and waived rehabilitative transfer requirements.

	g.  The applicant was discharged from active duty on 14 March 1985.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged on 9 July 1985 in accordance with AR 635-200, paragraph 14-12c by reason of (Misconduct) with a general under honorable conditions discharge certificate. 

     h.  He completed 2 years 3 months and 21 days of active service.  He was awarded or authorized the Army Service Ribbon, Army Achievement Medal, Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksmanship Hand Grenade (2nd Class).

4.  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.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the multiple UCMJ violations in the record as well as the applicant already receiving a general discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the 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 635-200 (Personnel Separations Enlisted Separations), in effect at time, provides for the separation of enlisted personnel.

	a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 1-18 (Counseling and rehabilitative requirements) Commanders will insure that adequate counseling and rehabilitative measures have been taken, before initiating action to separate a member for one of the following reasons:

* Inability to perform prescribed duties due to parenthood (para 5-8)
* Personality disorder (para 5-13)
* Entry level performance and conduct (chap 11)
* Unsatisfactory performance (chap 13)
* Minor disciplinary infractions or a pattern of misconduct (para 14-12a/b

	d.  Paragraph 14-12c (Commission of a serious offense) states 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 Court-Martial (MCM).  An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170008119


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