ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20170014435


APPLICANT REQUESTS:  an upgrade to his under honorable conditions, general discharge to an honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
(DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

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 would like to work for the Federal government; however, he needs to obtain a secret clearance and his current status hinders that process.  His goal is to get an honorable discharge and obtain gainful government employment. 

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

	a.  He enlisted in the Regular Army on 9 July 1982.  He immediately reenlisted on 8 July 1985.  

	b.  He was counseled on various offenses in regards to his job performance, personal appearance, denial of promotion, fail to be at the appointed place of duty, failure to follow instructions, falling asleep while on duty, missed formations, and consideration for separation between the periods of 1 July 1984 to 21 May 1986.

	c.  A bar to reenlist was implemented as a result of the applicant’s performance; however, his immediate commander recommended the bar be removed because his performance improved over a few months.  The bar was removed on 6 June 1985. 

	d.  On 3 February 1986, his unit reported him as absent without leave (AWOL) and then present for duty on 17 February 1986.  

e.  He accepted nonjudicial punishment on/for:

* 21 August 1985, for without authority, failed to go to the time prescribed, to his appointed place of duty, 
* 18 February 1986, for stealing one lunch meal, property of the government
* 21 March 1986, for being absent without leave on 3 February 1986 to 17 February 1986 

	f.  On 20 May 1986, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b (pattern of misconduct).  The applicant acknowledged receipt of the notification.

	g.  On 22 May 1986, he consulted with legal counsel on the contemplated action to separate him for pattern of misconduct.  He acknowledged:

* he may submit a statement in his own behalf, he elected not to submit a statement
* the rights available to him and the effect of waiving said rights 
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* he would be ineligible to apply for enlistment in the united states army for a period of two years after discharge


	h.  On 19 February 1987, his immediate commander initiated action to separate him under the provisions of AR 635-200, paragraph 14-12b (pattern of misconduct).  The Soldier has received two article 15’s while assigned.  He failed to respond to counselling and corrective actions.  His misconduct included breeches of integrity and the performance has been more than unsatisfactory in nature. The commander requested that the rehabilitative transfer be waived.  

     i.  Consistent with the chain of command’s recommendation on 30 May 1986, the separation authority waived the rehabilitative transfer and approved the request for discharge.  He directed that he be issued a general discharge certificate.

	j.  The applicant was discharged on 6 June 1986 under the provisions of AR 635-200, paragraph 14-12b (pattern of misconduct) and his service characterization is under honorable conditions (general).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 10 months and 18 days of net active service with lost time from 3 February 1986 to 16 February 1986.  

4.  The applicant applied to the Army Discharge Review Board (ADRB) and the Board determined after careful review of his application, he was properly and equitably discharged and his request was denied for an upgrade on 11 July 1990.   

5.  By law and AR 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.  

6.  By regulation, 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.  Paragraph 3-7b (General discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

7.  The Board can consider the applicants 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 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.  He was discharged after a pattern of misconduct 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.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:ERF	:RLD	:TLA	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 9 July 1982 until 7 July 1985.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states 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.

	b.  Chapter 14 -12b states Soldiers are subject to separation when a pattern of misconduct consisting of discreditable involvement with civil or military authorities, conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

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)	 AR20170014435


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