ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20170014690


APPLICANT REQUESTS: upgrade of his general, under honorable conditions (general) discharge. 

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 feels that his chapter from the Army was injustice due to his illness.  He never had any problem. 

3.  Review of the applicant’s service records shows: 

	a.  The applicant enlisted in the Regular Army on 1 November 1997.  He also reenlisted on 5 November 1999. 

	b.  On 23 December 2002, in Kuwait, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 for being disrespectful towards a commissioned officer, disobeying a lawful order from a commissioned officer, communicating a threat towards a commissioned officer, and wrongfully communicating a threat to his first sergeant.  His punishment consisted of a reduction to E-4, forfeiture of $940 pay per month, and extra duty and restriction for 45 days. 

	c.  On 24 December 2003, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct in accordance with paragraph 14-12b of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), due to misconduct – pattern of misconduct.  The reason for the proposed action is that the applicant made false official statements, was disrespectful toward superior noncommissioned officers, and failed to report on several occasions.  The commander recommended a general, under honorable conditions discharge. 

	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 indicated that if he were being recommended for a characterization of service that is less favorable than general, he wanted an administrative separation board and personal appearance before a board.  He further 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  

	e.  On 25 February 2003, and subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, pattern of misconduct in accordance with AR 635-200, chapter 14.  His chain of command recommended approval.

	f.  On 10 March 2003, the separation authority approved the applicant's conditional waiver and ordered him discharged under the provisions of paragraph 14-12(b) of AR 635-200 with his service characterized as under honorable conditions discharge.  The applicant was discharged accordingly on 24 April 2003.

	g.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct – pattern of misconduct, (Separation Code JKA), under the provisions of AR 635-200, paragraph 14-12b, with his service characterized as under honorable conditions.  He completed 5 years, 3 months, and 22 days of active service and he had lost time from 3 October 2001 to 3 December 2001.  He was awarded or authorized:

* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon

	h.  On 3 April 2013, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  The ADRB unanimously voted to deny his petition for an upgrade of his discharge.

4.  By regulation, misconduct includes minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted.  Based upon the length of honorable service completed prior to any misconduct, as well as the type of misconduct which led to the applicant’s separation, the Board concluded that granting clemency by upgrading the characterization of service to Honorable was appropriate.

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 the applicant a DD Form 214 showing his characterization of service as Honorable.
	 
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 (AR) 635-200 (Active Duty Enlisted Administrative 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct.

	a.  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.  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.  

2.  AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKA" SPD code is the correct code for Soldiers separating under paragraph 14-12(b) of AR 635-200 by reason of misconduct – pattern of misconduct.

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.

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment).


ABCMR Record of Proceedings (cont)	 AR20170014690


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