ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20170013935


APPLICANT REQUESTS:  a change to his separation code.  He also requests a personal appearance before the Board

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 is not being allowed to receive Veteran Administration benefits due to the separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  His DD Form 214 does not indicate a dishonorable conditions discharge

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

	a.  He enlisted on 19 April 1985 in the Regular Army.

	b.  He was convicted by general court-martial on 21 May 1990 for one specification of operating a vehicle in a wanton manner while drunk and injuring another Soldier.  He was sentenced to reduction to the grade of private (PVT)/E-1 and confinement for seven months.  The sentence was approved and executed.  On 15 October 1990, the unexecuted potion of his approved sentence to confinement was remitted.  

	c.  On 17 September 1990, his immediate commander initiated separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12 (Commission of a serious offense).  

	d.  After consulting with legal counsel, he subsequently requested a conditional waiver in which he voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions.  He acknowledged:

* maximum punishment
* the effect of any action taken by him in waiving his rights
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws if issued a discharge under other than honorable conditions

	d.  Consistent with the chain of command recommendation, the separation authority approved the discharge recommendation for immediate separation.  He would be discharged under the provisions of AR 635-200, paragraph 14-12c and furnished a General discharge certificate.  

	e.  On 18 October 1971, he was discharged from active duty under the provisions of AR 635-200, paragraph 14-12c, and issued a under honorable conditions (general) discharge.  His DD Form 214 reflects that the completed 5 years, 1 month, and 1 day of active service with 146 days of lost time from 21 May 1990 to 14 October 1990.  It also shows tin:

* Block 25 (Separation Authority) - AR 635-200, paragraph 14-12c
* Block 26 (Separation Code) - JKQ

4.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

5.  By regulation (AR 635-5-1), Soldiers who commit a serious offense may be separated under the provisions of paragraph 14-12cd of AR 635-200.  The Separation Code associated with this type of discharge is JKQ. 


BOARD DISCUSSION:

1.  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 record, the Board agreed that the applicant's separation code was warranted as a result of the misconduct.

2.  The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

3.  Army Regulation (AR) 635—5-1 (Personnel Separations – Separation Program Designators (SPD)), in effect at the time, sets forth the basic authority for use of separation program designator codes.  Separation codes prescribes the specific authorities and reasons for the separation of members from active military service.  SPD Code JKQ refers to Soldiers separating under the authority of AR 635-200, paragraph 14-12c, for reason of misconduct – commission of a serious offense.

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 (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 the 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, 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 upgrade service characterization.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013935


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