ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS

IN THE CASE OF: 
BOARD DATE:  2 July 2019
DOCKET NUMBER: AR20170012438


APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge, and changes to his separation and reenlistment codes

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 the characterization of service, reason for separation and Reentry (RE) code are inaccurate on his DD Form 214 (Certificate of Release or Discharge From Active Duty). He was also expeditiously separated from the Army and was not afforded the opportunity to consult with legal counsel.

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

   a. He enlisted in the Regular Army (RA) on 11 September 1997.

   b. The applicant was counseled by leadership on a variety of issues on 9 separate occasions.

   c. He accepted nonjudicial punishment, Article 15, on 7 October 1998 for failure to obey an order and for drunk and disorderly conduct. He received a reduction to the grade of E1, forfeiture of $463 pay per month for two months, 45 days extra duty and 45 days restriction.

   d. He accepted nonjudicial punishment, Article 15, on 31 January 1999 for the wrongful use of a controlled substance, marijuana. He received forfeiture of $479 pay per month for two months, 45 days extra duty and 45 days restriction.
   a. 

   e. On 25 March 1999, 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.

   f. On 25 March 1999, the applicant acknowledged receipt of the commander’s intent to separate him. Subsequently, he consulted with legal counsel and did not submit statements on his own behalf.  He acknowledged that:

* he can expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions or a discharge under other than honorable conditions is issued to him
* he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws

   g. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him under the provisions of chapter 14 of AR 635-200 due to misconduct, commission of a serious offense.

   h. Consistent with the chain of command’s recommendations, the separation authority reviewed the separation action; waived further rehabilitation requirements and approved the applicant's discharge under the provisions of AR 635-200, Chapter 14 and directed issue of a General Discharge, under honorable conditions.

   i. The applicant was discharged on 30 April 1999. His DD Form 214 shows he was discharged for misconduct with a general, under honorable conditions characterization of service and Reentry (RE) code of 4. He completed 1 year, 7 months and 20 days of net active service.

4. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the board on 11 July 2008.

5. By regulation (AR 635-200), action will be taken to separate a soldier for misconduct because of commission of a serious offense. Normally, soldiers separating for misconduct, the characterization of service is under other than honorable conditions. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

6. By regulation (AR 601-210), Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Chapter 3 of the regulation prescribes basic eligibility for prior service applicants for enlistment. The chapter includes a list of Armed Forces RE codes, including RA RE codes. Any
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applicant or current member of the Regular Component who has separated or discharged will require a waiver.

7. 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 relief is not 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.  Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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.
7/17/2019
X 

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, provides for 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 that any characterization would be clearly in appropriate.

   b. Chapter 14-12c of this regulation provides procedures for separating personnel for misconduct due a commission of a serious offense. A discharge under other than honorable conditions is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

3. Army Regulation AR 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service into the Regular Army and the U.S. Army Reserve.

   a. RE-1 applies to individuals completing their term of active service who are considered qualified to reenter the U.S. Army.

   b. RE-3 applies to individuals not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

   c. RE-4 applies to individuals separated from last period of service with a non-waivable disqualification.

4. 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
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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.

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