ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20170012144


APPLICANT REQUESTS: an upgrade of his general discharge to honorable and to have his reentry code changed

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

FACTS:

1.  The applicant states he was having difficulty while he was in the military and unfortunately was struck with deep depression while his father was diagnosed with cancer.  He is doing a lot better now.  When he was younger, unfortunately he made a mistake and now he regrets parting with the military in such a dishonorable fashion.  He plans on making up for his mistakes and wants to reenlist, but his separation code and re-entry code prevents him from doing so.  Since his discharge, he has worked in casinos and have dealt with stress in a positive way.  He hopes to reenlist in order to right his wrongs.  He also knows it’s a lot to ask after being separated for a long time, but he is asking for a second chance.  He believes he can earn the trust back and make his country proud.

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

a.  He enlisted in the Regular Army on 10 September 2013.

b.  He accepted/received non judicial punishment (NJP) on/for:

* failing to go at the time prescribed to his appointed place of duty on or about 28 July 2014
* failing to go at the time prescribed to his appointed place of duty on or about 29 July 2014
* failing to go at the time prescribed to his appointed place of duty on or about 30 July 2014
* through neglect  missed the movement of 579th Signal Company, 70th Brigade Support Battalion, 210th Field Artillery, 249 SAW gunners with which he was required in the course of duty to move on or about 30 July 2014
* failing to go at the time prescribed to his appointed place of duty on or about 31 July 2014

   d.  On 2 December 2014, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) Chapter 5-17 for other designated physical or mental conditions.  The applicant was diagnosed with Acute Adjustment Disorder with Depressed Mood and was determined unfit for duty.

   e.  On 2 December 2014, the applicant acknowledged receipt of the notification of the separation action.  He consulted with legal counsel and further acknowledged:

* the rights available to him and the effects of waiving said rights 
* he may expect to encounter prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* as a result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading
* he would be ineligible to apply for enlistment in the U.S. Army for 2 years after discharge

   f.  On 3 December 2014, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation and ordered the applicant to be separated from the Army prior to the expiration of his current term of service under the provisions of AR 635-200, Chapter 5-17 and directed he be issued a General Discharge Certificate.  

   g.  He was discharged from active duty on 13 December 2014 with a general under honorable conditions character of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year and 26 days of net active service.  He was awarded or authorized:

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

3.  On 5 May 2017, the Army Discharge Review Board (ADBR) reviewed the applicant’s discharged processing, but found it proper and equitable.  The ADBR denied his request for an upgrade of his discharge.

4.  By regulation, members are subject to separation on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.

5.  The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.
 
BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted.  Based upon the short term of honorable service completed prior to a pattern of misconduct which led to the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service or reentry code.

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 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 Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious than 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.  Paragraph 5-17 states members are subject to separation on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.

 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 (BCMNRs) 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 court-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 on the basis of 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)	 AR20170012144


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