ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170013372


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

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 he was told after 6 months his discharge would upgrade to a general discharge.  He states he was a great Soldier, when his roommate got killed in a vehicle accident it took a big hold on him. 

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

	a.  He enlisted in the Regular Army on 7 April 1987.

	b.  He accepted nonjudicial punishment (NJP) on/for:

* 15 December 1988, for failure to report
* 15 February 1989, for failure to report

	c.  A Bar to Reenlistment Certificate was approved on 6 February 1989 for receiving two records of NJP.

	d.  On 7 February 1989, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR)    635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b for a pattern of misconduct consisting of 2 failures to report, each time he received an Article 15 for said offenses.  
	e.  On 10 February 1989, the applicant acknowledged receipt of the notification.  He further acknowledged that: 

* he had been advised by his consulting counsel on the basis for the contemplated action to separate him for pattern of misconduct
* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded

	f.  On 15 February 1989, the applicant's intermediate commander recommended the applicant be separated under the provisions of AR 635-200, chapter 14, paragraph    14-12b, pattern of misconduct and the applicant be issued an Honorable Discharge Certificate. .

	g.  On 22 February 1989, the chain of command recommended approval of the separation action with a characterization for a general discharge.

	h.  On 27 February 1989, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 14-12b, pattern of misconduct.  He directed a general discharge characterization of service. 

	i.  On 6 March 1989, the applicant was discharged from active duty under the provisions of AR 635-200, paragraph 14-12b with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year and 11 months of active service.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Badge Hand Grenade

4.  By regulation AR 635-200 provided an under other than honorable conditions certificate is normally appropriate for a Soldier discharged under this chapter, except that an honorable or general discharge certificate may be issued if the Soldier’s record is so meritorious that any other characterization clearly would be inappropriate

5.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted.  Based upon the minor misconduct which was used to separate the applicant and the commander’s intent to give the applicant a general discharge, the Board found an error and injustice with the current characterization of service.  For that reason, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  Paragraph 3-7a (Honorable Discharge) 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.

	c.  Paragraph 3-7b (General Discharge) 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.  

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)	 AR20170013372


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