ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170010346


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
* DD Form 149 (Application for Correction of Military Record)
* Certificate of Training
* Memo in Response to Administrative Separation Action
* DA Form 4856 dated 18 March 2010
* DA Form 4856 dated 23 June 2010
* DA Form 4856 dated 30 July 2010
* 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130000213 on 2 May 2013.

3.  The applicant states his misconduct was a one time and unwise mistake.  He completed his 45 days extra duty and 16 hours of alcohol and other drug abuse prevention training. For the past 7 years, he has been clean and held a steady job and has not been in trouble.

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

a.  He enlisted in the Regular Army on 17 September 2008.

  b.  He received non-judicial punishment on or about 9 April 2010 and 12 April 2010 for the wrongful use of cocaine; his punishment consisted of reduction to E-1.
   c.  On 23 August 2010, his immediate commander initiated action separate the applicant.
   
   d.  On 23 August 2010, the applicant acknowledged receipt of the commander’s request to separate him.

   e.  On 25 August 2010, the applicant requested to be retained on active duty and if he was to be discharged, that he be given an Honorable Discharge.

   f.  Consistent with the chain of command recommendations, the separation authority approved the discharge recommendation and the applicant was to be separated prior to the expiration of current term of service, under the provisions of AR 635-200, Chapter 14-12c, for Commission of a Serious Offense, Misconduct-Abuse of Illegal Drugs. He would be issued a General Discharge Certificate.

  g.  He was discharged from active duty on 20 October 2010 with a general, under honorable conditions characterization of service.  His DD Form 214 shows he completed 2 years, 1 month and 4 days of active service and 5 months and 4 days of inactive service. It also shows he was awarded or authorized the:

* National Defense Service Medal
* Global War On Terrorism Service Medal
* Army Service Ribbon

5.  By regulation, action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.

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 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.  He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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 Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted person

   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 soldier’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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

    c.  Chapter 14 of that regulation provides action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed.

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 state 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170010346


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