ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170010869


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

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 states he was not a repeated offender, it was his first alcohol related instance. 

2.  The applicant provides his DD Form 214 which shows his service from 24 April 2012 to 3 November 2015.

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

	a.  Having had prior service in the Army Reserve Delayed Entry Program, he enlisted in the Regular Army on 24 April 2012.

	b.  He accepted nonjudicial punishment on:

* 28 May 2014, for failure to be at the prescribed appointed place of duty, his punishment in part consisted of, reduction to E-3 (suspended until 3 September 2014)
* 29 August 2014, the suspension of the punishment of reduction to E-3 imposed on 5 June 2014 was vacated for the applicant being absent without leave on 15 August 2014
* 3  August 2015, disobeyed a lawful order, not to consume alcohol while TDY at Fort Knox, KY, his punishment in part consisted of reduction to E-1 

	c.  The Louisville Metro Police Department dated 4 July 2015 shows that the applicant was arrested and charged for alcohol intoxication in a public place, resisting arrest, assault 3rd degree to a police officer or probate officer.  

	d.  The applicant was counseled on 7 July 2015 for the event of misconduct and violation of a general order for consuming alcohol while on assignment in Louisville, KY.  

	e.  He underwent a mental evaluation on 5 August 2015, the examiner stated that the applicant reported behavioral difficulties due to legal stressors, but met the medical fitness standards for retention as there were no indication of a board-able behavioral health disorder.  The applicant was cleared from a behavioral health perspective for administrative separation in accordance with AR 635-200 (Personnel Separations – Enlisted Personnel).  

	f.  On 23 October 2015, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of AR 635-200, chapter 14-12c, for the commission of a serious offense, he assaulted two Jefferson County police officers in Louisville, KY, while attempting to resist arrest for alcohol intoxication in a public place by kicking and punching at the officers on or about 4 July 2015.  He wrongfully disobeyed an order from Colonel X___ by consuming alcohol while away on temporary duty at Fort Knox, KY on or about 4 July 2015, and you also failed to go to ranger assessment on or about 12 April 2014.  He recommended his service be characterized as general, under honorable conditions.  He was advised of the following:  

* his rights available to him and the effect of waiving said rights 
* his rights to submit a statement on his own behalf 
* his rights to consult with counsel and representation by military counsel and/or civilian counsel at no expense to the Government
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading
* he is ineligible to apply for enlistment in the Army for 2 years after discharge

	g.  On 23 October 2015, he acknowledged receipt of the notification of the separation action under the provisions of AR 635-200, chapter 14-12c and the rights that was available to him.  

	h.  He consulted with legal counsel on 26 October 2015 of his rights.  

	i.  He provide a written statement on his own behalf on 30 October 2015 to the separation authority that stated that he fully understood the accusations against him for wrongfully disobeying orders from a superior officers and failing to go to ranger assessment.  
	j.  On 2 November 2015, consistent with the chain of command recommendations, the separation authority approved the discharge under the provision of AR 635-200, chapter 14, commission of a serious offense and directed his service be characterized as general under honorable conditions.  

	k.  The DA Form 4187 (Personnel Action), dated 2 November 2015 shows that his duty status changed from present for duty to civilian confinement on 31 October 2015.  

	l.	He was discharged from active duty on 3 November 2015, under the provisions of AR 635-200, paragraph 14-12c, misconduct for a serious offense.  His DD Form 214 shows that his service was characterized as under honorable conditions, general.  He completed 3 years, 6 months, and 7 days active service this period.  He had lost time from 31 October 2015 to 3 November 2015.  

4.  By regulation, members are subject to separation for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized.

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, 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 pattern of misconduct and some involving violence towards law enforcement officers, 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.  AR 635-200, in effect at the time, provides 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.  Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized.  

2.  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)	 AR20170010869


4


1