ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170010936


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 that he requests an upgrade of his general discharge to an honorable discharge, he was 17 days short of 2 years and was told he would have full Department of Veterans Affairs (VA) benefits.

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

	a.  He enlisted in the Regular Army on 3 March 1987.

	b.  He accepted nonjudicial punishment on/for:

* 13 August 1987, for operating a vehicle while drunk, drinking underage, and drinking and driving
* 21 November 1988, for disobeying a lawful order

	c.  On 17 January 1989, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel – Enlisted Separations), paragraph 14-12c for commission of a serious offense.  The reasons for the proposed actions are: wrongfully driving a vehicle while intoxicated on two separate occasions, failing to be at his appointed place of duty many times, disobeying a noncommissioned officer, and writing a bad check.  The immediate commander recommended that he receive a discharge under honorable conditions.  

	d.	On 17 January 1989, he acknowledged receipt of the proposed elimination proceedings.

	e.  On 19 January 1989, he consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of paragraph 12c, chapter 14, AR 635-200, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged:

* he waived his right to counsel
* statements would be submitted in his own behalf (his statement is unavailable for the Board to review)
* he requested treatment in a VA medical center

	f.	On 20 January 1989, the immediate commander initiated separation action
against the applicant under the provisions of chapter 14, AR 635-200.  The applicant's intermediate commander recommended that the applicant be issued a general, under honorable conditions discharge.

	g.. On 3 February 1989, consistent with the chain of command recommendations, the separation authority approved the request for discharge under the provisions of 
AR 635-200, chapter 14 and directed a general, under honorable conditions discharge.

	h.	The applicant was discharged from active duty on 16 February 1989 with a general, under honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 11 months, and 13 days of active service.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Hand Grenade Bar

4.  By regulation, action will be taken to separate a member 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.  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.

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 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 record, 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 (Enlisted Separations – Personnel Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation provides that action will be taken to separate a member 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.  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.

	b.  Paragraph 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 be clearly inappropriate.

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)	 AR20170010936


4


1