ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 September 2019

	DOCKET NUMBER:  AR20170012361


APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* self-authored statement

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 he is requesting an upgrade from general to honorable and he has attached a copy of the circumstances.

3.  The applicant provides a self-authored statement which states:

     a.  He believes his discharge was unjust, because it was the first time he was ever in trouble.  He joined the Army Infantry right out of high school and he made Sergeant in four years.  During this time, he was awarded four achievement and four accommodation medals and one for a perfect score on the Expert Infantry Badge.  He accomplished jungle training twice in Panama and the Primary Leadership Development Course in Korea.

     b.  At the time, he was married with a son and had problems due to the amount of time away from his family.  He loved his job and the family, but he did not know about Post Traumatic Stress Disorder and the effects on Soldiers.  He abused drugs, as a means of numbing his feelings.  He was discharge without any chances of being in a drug program, after almost close to six years of excellent record. He has since completed Corrections Officer Academy and has become a direct support officer for men and women with mental health disabilities.

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

	a.  He enlisted in the Regular Army on 7 August 1984 and reenlisted on 7 April 1988 for a period of 4 years in the pay grade of specialist/E-4. 

	b.  He served overseas in Korea from 22 June 1986 until 2 July 1988. 

	c.  On 4 October 1989, he accepted non judicial punishment under the provisions of Article 15, Uniform Code of Military Justice for wrongfully using cocaine between 30 July 1989 and 30 August 1989.  His punishment included a reduction in rank to 
Specialist/E-4.

	d.  On 14 November 1989, he received a counseling statement notifying him that he was being recommended for an administrative discharge under the provisions of Army Regulation (AR) (Personnel Separation – Enlisted Personnel), 635-200, Chapter 14-12c, for misconduct. 

	e.  On 4 December 1989, the applicant's commanding officer notified him of his intent to initiate action to affect his discharge under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, for misconduct (Commission of a Serious Offense).  Specifically for wrongfully using cocaine from 30 July 1989 to 30 August 1989. 

	f.  The applicant acknowledged receipt and consulted with counsel.  Following consultation with legal counsel, he understood his rights and acknowledged the following:

* he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	g.  The applicant’s commanding officer initiated action to separate him under the provisions of AR 635-200,Chapter 14, paragraph 14-12c, misconduct and abuse of illegal drugs and recommended the issuance of a general, under honorable conditions, discharge.  His chain of command concurred with the commanders recommendations.

	h.  Consistent with the chain of command's recommendation, the separation authority approved his discharge under the provisions of AR 635-200, chapter 14-12c, and directed the issuance of a general, under honorable conditions, discharge.

	i.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 26 December 1989, under the provisions of AR 635-200, Chapter 14-12c, and given a characterization of general, under honorable conditions.  It also shows he had 5 years, 4 months and 20 days of active service with no lost time.  

	j.  He was awarded or authorized the:

* Army Service Ribbon
* Overseas Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade
* Army Good Conduct Medal
* Non-commissioned Officer Professional Development Ribbon
* Army Achievement Medal (3rd Oak Leaf Cluster)
* Army Commendation Medal (1st Oak Leaf Cluster)
* Expert Infantry Badge
* Expert Badge with Pistol Component Bar

5.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

6.  By regulation, (AR 635-200), action will be taken to separate a soldier 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 and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history).

7.  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 review of the application and all evidence, the Board determined some relief is warranted.  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.  He was discharged for a criminal offense and was provided an Under Honorable Conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.
BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statements to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 7 August 1984 until 6 April 1988,” and “Completed First Full Term of Service.”

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.

	 
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 (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) provided that 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 that any other characterization would be clearly inappropriate. 

   b.  Paragraph 3-7b (General) provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty.

   c.  Paragraph 14 (Separation for Misconduct) of this regulation This chapter establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a .pattern ,oft misconduct, commission-of a serious offense, conviction by civil authorities,' desertion, and absence without-leave.  Action will be taken to separate a soldier 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 and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history.

	d. Paragraph 14-12c (Commission of a Serious Offense) provided that commission of a serious military or civil offense, if the specific circumstances or the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012361


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