ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170011309


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)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)

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 two stressful incidents occurred that led to his separation.  First his grandmother died while he was on a field training exercise.  He states he was notified of his grandmother’s death 5 days after her death.  When he arrived home for his grandmother’s funeral, she had been buried already.  Secondly, his mother was having surgery.  He states he was not allowed to go home and assist his mother after the surgery.  He states his platoon sergeant advised him to go absent without leave (AWOL).  He replied to his platoon sergeant that he could not go AWOL.  He states he did not know at the time but going AWOL may have been the best advice; going AWOL for more than 30 days and returning before 60 days had passed could lead to an honorable discharge.  He states he took a different route to get discharged.  He was not a coward, he had integrity 

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

	a.  He enlisted in the Regular Army on 6 August 1996.

	b.  He served in Hawaii from 26 December 1996 to 17 December 1998.

	c.  He received nonjudicial punishment on 13 October 1998 for wrongful use of 
methamphetamine.  His punishment included reduction to private/E-1.

	d.  On 16 November 1998, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the commission of a serious offense (wrongful use of methamphetamine).

	e.  On 16 November 1998, he acknowledged receipt of the notification of the separation action.  

	f.  On 16 November 1998, he was advised by counsel of the basis for the contemplated action to separate him for commission of a serious offense under AR 635-200, chapter 14, paragraph 14-12c, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged:

* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions was 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
* statements in his own behalf were not submitted by the applicant

	g.  On 16 November 1998, consistent with the chain of command recommendation, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for the commission of a serious offense.  He would be issued a general discharge.

	h.  He was discharged from active duty on 17 December 1998 with a general, under 
honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 4 months, and 12 days of active service.  It also shows he was awarded or authorized:

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

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 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

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority 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.  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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  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 interest of justice to do so.

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)	AR20170011309


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