ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170013409


APPLICANT REQUESTS:  an upgrade to his under honorable conditions character of service

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 believes his good conduct since leaving the military should enable him to receive an upgrade.  He has made a terrible mistake in the past, but has improved over the years with a clear criminal background.

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

	a.  He enlisted in the Regular Army on 2 October 2006 and reenlisted on 13 August 2009.  He served in Iraq.

	b.  He accepted nonjudicial punishment (NJP) on 28 March 2011 and 14 June 2011 for assault on his spouse.  He was reduced to private/E1, forfeiture of $366 per month for two months, and 45 days of extra duty and restriction.

	c.   On 25 July 2011, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for pattern of misconduct. 

	d.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He elected not to submit a statement in his own behalf.  He acknowledged he:
   
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded

	e.    Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to a pattern of misconduct, in accordance with AR 635-200, chapter 14-12b.  His chain of command recommended approval.

	f.  On 19 August 2011, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12b, a pattern on misconduct, with his service characterized as general under honorable conditions.  The applicant was discharged accordingly on 8 September 2011.

	g.  His DD Form 214 reflects he was discharged on 25 January 2005, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12b, pattern of misconduct, with a characterization of service of general, under honorable conditions.  He completed 3 years, 1 month, and 19 days of active service.  The DD Form 214 also shows in: 

* Item 23 (Type of Separation) - Discharge
* Item 26 (Separation Code) – JKA
* Item 27 (Reentry Code) - 3
* Item 28 (Narrative Reason for Separation) - Pattern of Misconduct 

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 16 October 2013.  The ADRB determined the discharge was both proper and equitable and voted to deny relief. 

5.  By regulation (AR 635-200), action will be taken to separate a member for a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

6.  In reaching its determination, the Board can consider the applicant’s petition and her 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.  Although he was remorseful, he did not provide character witness statements or evidence of post-service achievements for the Board to consider.  He was discharged for a pattern of criminal offenses, which involved violent offenses towards others, 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.
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 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel.  

   a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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.

   b. Paragraph 3-7b 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, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record.

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)	 AR20170013409


4


1