ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170014296


APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable.

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 a war veteran who served his country to the best of his ability.

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

	a.  He enlisted on 18 October 1988, in to the Regular Army.  He served in Korea from 8 March 1989 to 6 March 1990.

	b.  On 9 July 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of wrongfully using cocaine.  His punishment consisted, in part, of reduction to (private) E-2/PV2. 

	c.  On 11 June 1991, the applicant received a General Officer Memorandum of Reprimand for driving under the influence of alcohol for a second time.

	d.  On 7 August 1991, a DA Form 4126 (Bar to Reenlistment Certificate) was initiated.  The bar was approved by his chain of command on 12 August 1991.

	e.  On 9 August 1991, the applicant accepted NJP under the provisions of Article 15 for one specifications of failure to be at appointed place of duty.  His punishment consisted, in part, of a suspended reduction to E-1/PVT (suspended).
	f.  On 11 October 1991, the applicant accepted NJP under the provisions of Article 15 for one specifications of wrongful use of cocaine.  His punishment consisted, in part, of reduction to PVT.

	g.  On 22 November 1991, his 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 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), based on abuse of illegal drugs.

	h.  On 22 November 1991, the applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12c.  He acknowledged:

* Receipt of the letter of notification
* He has been provided copies of all documents in the elimination packet

	i.  Subsequent to the applicant's acknowledgement, on 25 November 1991, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, commission of a serious offense.

	j.  He consulted with legal counsel on 25 November 1991 and completed a request for a conditional waiver.  He acknowledged:

* he has been advised of the basis for the separation and its effects
* he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge

	k.  On 4 December 1991, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under honorable conditions.

	l.  On 11 December 1991, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for commission of a serious offense and ordered his service be characterized as under honorable conditions.

	n.  On 22 January 1992, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general under honorable conditions characterization of service.  He completed 3 years, 3 months, and 5 days of active duty service.  His DD Form 214 reflects in:
* item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized): 

* Army Service Ribbon
* National Defense Service Medal
* Overseas Service Ribbon
* Army Lapel Button
* Marksman Marksmanship Badge with Rifle Bar (M16)
* Expert Marksmanship Badge with Hand Grenade Bar

* item 24 (Character of Service), Under Honorable Conditions (General)
* item 26 (Separation Code), JKK (Misconduct)
* item 28 (Narrative Reason for Separation), Misconduct – Abuse of Illegal Drugs

4.  By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the pattern of misconduct and the lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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 (Personnel Separations) 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.  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.

	c.  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)	 AR20170014296


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