ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:
BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20170014807

APPLICANT REQUESTS:  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show item 24 (Character of Service) as general, under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   * DD Form 149 (Application for Correction of Military Record)
* Self-Authored Letter
* International Order of Freemasonry for men and women certificate
* PSI (Professional Skills Institute) Certificate
* PSI High Achieve Award
* PSI Honor Graduate
* PSI Completion Certificate
   * PSI Transcript 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 that he would like his DD Form 214 (item 24) changed to general, under honorable conditions. He believes that this was a harsh punishment. He was out for the weekend and the car he rented broke down and he was unable to get back to post.  He called the unit and his squad leader to report this. He asked his
squad leader to pick him up and he refused to come get him. He went to the bus station and found some military police and they returned him to post. He wanted to make a career of the Army.

3. The applicant provides a self-authored letter that states that he is requesting a discharge upgrade for the service period from 1983 to 1986. He believes that the character of his discharge was inequitably based on an isolated incident. He was a very young, 17 years old when he joined and was wrongly influenced by those that should
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have guided him. He regrets his error, he is 51 years old now, had raised a family, and obtained a degree in computer operations. He is requesting an upgrade to join the AMVETS (American Veterans) in order to help those who deserve it. He requests his character of service to be changed to general, under honorable conditions. He also provided copies of his

* PSI (Professional Skills Institute) Certificate for computer operations
* PSI High Achieve Award for computer operations
* PSI Honor Graduate
* PSI Completion Certificate of 600 hours completed for computer operations

4. A review of the applicant’s record show the following:

   a. He enlisted in the Regular Army on 6 July 1983.

   b. His DA Form 2-1 (Personnel Qualification Record) item 35 (Record of Assignment) shows a period of absence without leave from 31 December 1985 with no end date recorded.

   c. He did not accept non-judicial punishment (NJP) and demanded a trial by court- martial on 3 May 1985 for the wrongful use of marijuana on or about 8 March 1985. In Item 3a (Having Consulted Counsel), the applicant chose trial by court-martial.

   d. He did not accept (NJP) and demanded a trial by court-martial on 15 August 1985 for the wrongful use of marijuana on or about 7 May 1985. In Item 3a, the applicant chose trial by court-martial.

   e. DA Form 2496 (Disposition Form), dated 28 June 1985, show the results of a laboratory test indicating that the applicant tested positive for marijuana.

   f. Court-martial charges were preferred on 29 January 1986. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of failure to be at his appointed place of duty on or about 26 August 1985, one specification of absent without leave on or about 31 December 1985, one specification of wrongful use of marijuana on or about 7 April 1985 to 7 May 1985, and one specification of furnishing a urine sample that contained tetrahydrocannabinol on or about 7 May 1985.
   a. 



   g. On 27 February 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged:

* He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* He stated that under no circumstances did he desire further rehabilitation or to perform further military service
* He elected not to submit a statement on his own behalf

   h. On 28 February 1986, his chain of command recommended approval of separation under the provision AR 635-200, chapter 10 with an under other than honorable discharge.

   i. On 10 March 1986, the adjutant general approved separation under the provisions of AR 635-200, chapter 10 with an under other than honorable discharge.

   j. On 11 March 1986, the separation authority approved separation under the provisions of AR 635-200, chapter 10 with an under other than honorable discharge to include a reduction to private/E-1.

   k. He was discharged on 13 March 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) under the provisions of chapter 10 of AR 635-200 with Block 24 (Character of Service) an under other than honorable conditions discharge. His DD Form 214 shows he completed 2 years, 7 months, and 27 days of active duty service with 11 days of lost time. Block 26 (Separation Code) is JFS. (Good of the Service, in lieu of court-martial)). Item 27 (Reentry Code) is RE-3, 3b, 3c (Ineligible for reenlistment unless a waiver is granted).
   a. 

5. By regulation, AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred.

6. AR 635-5 (Separation Documents) states that:
* Item 23 (Type of Separation) enter the appropriate term; Release from active duty, Discharge, Retirement, Release from active duty and order to active duty in another status, Release from active duty (ADT), Release from custody and control of the Army, Release from ADT and discharge from the Reserve of the Army and return to the Army National Guard
* Item 24 (Character of Service) Correct entry is vital since it affects a soldiers’ eligibility for post–service benefits. Characterization or description of service is determined by directives authorizing separation.
* Item 26 (Separation Code) obtain correct entry from AR 635-1, which provides the corresponding separation program designator code for the regulatory authority and reason for separation
* Item 27 (Reentry Code) AR 601-210 (Regular Army and Reserve Components Enlistment Program) determines Regular Army and U.S Army Reserve reentry eligibility and provides regulatory guidance on the RE codes

7. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

8. 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.
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BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was not warranted. In reaching its determination, the Board considered his petition and his service record in accordance with the published equity, injustice, or clemency determination guidance (FY2018 Guidance) but found no reason or justification to upgrade his discharge. The Board considered the applicant's statement, the frequency and nature of his misconduct, the reason for his separation (voluntary request for discharge in lieu of court-martial) and whether to apply clemency. The Board found no in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence and the misconduct leading to the applicant’s separation, the Board agreed that the characterization of service received at the time of discharge was not in error or unjust.

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.

10/17/2019

 X 	
CHAIRPERSON
Signed by: 

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 – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude.

   b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability.

   c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred.

3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable; they are ineligible for enlistment unless a waiver is granted
* RE-4 applies to Soldiers who are separated from their last period of service with a non-waiverable disqualification; they are ineligible for enlistment
* 

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 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.

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