ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20170013543


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to under honorable conditions (General)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* State of New York Letter of Certificate of Good Conduct
* Relief of Civil Disabilities
* Employment Verification
* BSCE and JD
* USDC Good Standing
* 8 Letters of Reference

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 30 years has passed since his discharge and confinement as a result of a civilian arrest and prosecution of a drug related offense.  The service should have waited for a resolution of the case, as there was a hung jury and second, the judgement was unanimously reversed on the law by the New York State of Appeals Court.  He was not aware of the possibility of applying for correction of the discharge record, which is why he is submitting the present application past the 15 year period.  He would like the stigma associated with this type of discharge removed and have the same upgraded to a general discharge.

3.  The applicant provides eight character reference letter s from his professors and lawyers about his intelligence, work habits, character, loyalty, discipline, and his ability to be a positive role model for his country.

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

a.  The applicant enlisted in the Regular Army on 13 May 1986.  

	b.  On 15 April 1987, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct in accordance with paragraph 14-12c of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), due to misconduct - commission of a serious offense.  The immediate commander recommended an under honorable conditions (general) discharge.

   c.  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 waived consideration of his case by an administrative separation board and/or personal appearance before a board and 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 him
* 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  

   d.  Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of a serious offense in accordance with AR 635-200, chapter 14.   His chain of command recommended approval with the issuance of a under other than honorable discharge.

   e.  In July 1987, the Adjutant General directed the administrative board by letter on 10 June 1987 be convened to determine whether Private First Class should be discharged for the commission of a serious offense pursuant to AR 635-200, chapter 14.

   f.  On 6 July 1987, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12(c) and (d) of AR 635-200 with his service characterized as under other than honorable conditions.  The applicant was discharged accordingly on 8 September 1987.

   g.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct – abuse of illegal drugs, (Separation Code JKK), under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as under other than honorable conditions.  He completed 9 months and 7 days of active service.

5.  By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense.  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 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 warranted.  The applicant’s contentions, letters of support, and post-service achievements 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.  The Board agreed an Under Honorable Conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization.

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 him a DD Form 214 for the period ending 8 September 1987 showing his character 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.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 was 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.

   a.  Paragraph 3-7a states that 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 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.

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)	 AR20170013543


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