ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170008982


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* 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 he was a victim of a vindictive retired Colonel.  He was in a motor vehicle accident with the Colonel’s wife in which she was at fault.  He received a ticket which was dismissed as a result of investigation that cleared him of any wrongdoing.  The applicant’s company commander was notified of the incident and ordered the applicant to pay the Colonel $600.00 in damages and sell his vehicle.  The applicant refused and was found not at fault

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

a.  On 29 November 1983, he enlisted in the Regular Army (RA).

b.  On 27 April 1984 to 15 July 1985, he served at Fort Sill, Oklahoma.

   c.  On 16 October 1984, he accepted nonjudicial punishment (NJP) Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL).  His punishment consisted in part of reduction to PVT/E-1 and 14 days extra duty and 14 days restriction.

   d.  On 9 October 1984, with the intent to defraud and for the procurement of items, a certain check upon the Fort Sill National Bank.  His punishment consisted in part of reduction to E-1 and 14 days extra duty and 14 days restriction.

   e.  On 1 July 1985, separation proceedings were initiated for a pattern of misconduct under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12b.  His immediate commander recommended a general discharge.  He consulted with legal counsel and was advised of the basis for the contemplated action to separate him for misconduct.  He declined making a statement on his own behalf.

   f.  On 1 July 1985, his immediate commander initiated separation action against him in accordance with paragraph 14-12b of AR 635-200.  His intermediate commander recommended approval.

   g.  On 8 July 1985, consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14 and directed the issuance of a General Discharge Certificate.

  h.  On 15 July 1985, he was discharged from active duty.  He completed 1 year, 7 months and 14 days of active net service.  His DD Form 214 shows he was awarded/authorized the:

* Army Service Ribbon
* Marksmanship Qualification Badge with Rifle Bar
* Marksmanship Qualification Badge with Grenade Bar

4.  By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12b of AR 635-200 for a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier s overall record.

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 review of the application and all evidence, the Board determined relief is not warranted.  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 relatively short term of honorable service completed prior to the multiple offenses which resulted in the applicant’s separation, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.
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) sets forth the basic authority for the separation of enlisted personnel.

   a.  An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   b.  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.

   c.  Paragraph 14-12b, in effect at the time, states members are subject to separation under this provision for a pattern of misconduct.  A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found, in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier s overall record.

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)	 AR20170008982


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