ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 June 2019

	DOCKET NUMBER:  AR20170011756


APPLICANT REQUESTS:  an upgrade of his under honorable conditions 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 that he was diagnosed with Post Traumatic Stress Disorder (PTSD) (non-combat) which affected his work performance.  Also, due to the characterization of service and the narrative reason for his separation as stated on his DD Form 214, he has difficulty finding employment.

2.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 6 March 2012.

	b.  He received nonjudicial punishment on 14 July 2014 for failure to obey an order.

	c.  On 9 December 2014, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Chapter 14-12c, in effect at the time for commission of a serious offense failing to follow a no contact order.

	d.  On 10 December 2014, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, consulted with legal counsel and waived his right to submit statements on his own behalf.  He was advised of:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under than honorable conditions discharge

	e.  Subsequent to the applicant's acknowledgment, the immediate commander initiated separation action against the applicant for misconduct.  The chain of command recommended approval.

	f.  Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 14, AR 635-200, Chapter 14-12c by reason of misconduct, commission of serious offense on 19 December 2014.

	g.  He was discharged from active duty on 14 January 2015.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he completed 2 years, 10 months and 9 days.  It also shows he was awarded or authorized:

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

	h.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge which was denied by the board on 11 January 2017.

3.  By regulation, action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under 
AR 635-200, Chapter 14-2b.

4.  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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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 Separation – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable distinction 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 characterization would be clearly in appropriate.

	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 14-12b of this regulation provides procedures for separating personnel for misconduct because of discreditable conduct and conduct prejudicial to good order and discipline including conduct violating accepted standards of personal conduct found in the UCMJ.

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 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.
//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20170011756


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