ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170016140 APPLICANT REQUESTS: an upgrade to his general condition 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 was given an Article 15 for worthless checks he wrote accidentally, after which he was incarcerated in both Bell County and Lampassass County, TX for the same checks. After his release, he was given a chapter 14, financial misconduct discharge. He feels that his constitutional right against double jeopardy was violated. 3. The applicant’s service shows: a. He enlisted in the Regular Army on 28 January 1992. b. He received counseling for numerous checks from May to August 1993, due to insufficient funds on 25 August 1993. c. He underwent a mental evaluation on 25 August 1993 and the examiner stated he was psychiatrically cleared for any administrative action deemed appropriate by the command. d. He underwent and medical examination on 2 September 1993 and the examiner qualified him for separation. e. He accepted nonjudicial punishment on 9 September 1993, for writing worthless checks, and dishonorably failed to maintain sufficient funds in his bank account for pay of checks written. His punishment in part was reduction to E-1 and forfeiture of $213, suspended. f. On 5 October 1993, 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), chapter 14-12b, for pattern of misconduct he cited the reason as unsuitable for further military service due to increased personal debts and inability to manage finance at any degree. He recommended a general conditions discharge. g. On 7 October 1993, he consulted with legal counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14. He acknowledged: * the rights available to him and the effect of waiving said rights * the right to have his case heard by an administrative separation board * the right to submit a statement in his own behalf * he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued * he would be ineligible to apply for enlistment in the Army for a period of two years after discharge h. On 7 October 1993, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-200, paragraph 14-12b for patterns of misconduct for continued indebtedness and inability to manage personal finances. He recommended a general under honorable conditions discharge. i. Consistent with the chain of command recommendations on 1 November 1993, the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-12b for acts or patterns of misconduct. He directed he be issued a general discharge certificate. j. The applicant was discharged from active duty on 20 December 1993 under the provisions of AR 635-200, paragraph 14-12b for misconduct, SPD JKA –a pattern of misconduct consisting of discreditable incidents - civilian or military. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his characterization is under honorable conditions, general. He completed 1 year and 9 months and 14 days of active service this period. He had lost time from 6 October 1993 to 14 November 1993. k. The applicant applied to the Army Discharge Review Board (ADRB) and on 27 January 1996 after careful consideration of his military records and all other available evidence the board denied his request for change in the character and/or reason of his discharge. l. The applicant submitted a congressional inquiry to his congressman on 18 October 2018, and the Army Review Board Agency by letter, 13 November 2018, informed the applicant and Congressman X___ X___, Detroit, MI that his application was being reviewed to ensure if it complies with applicable statutes and governing Army regulations before presenting to the Board. 4. By regulation 635-200, paragraph 3-7b 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. Paragraph 14-3 states that an under other than honorable conditions certificate is normally appropriate for a member discharged under this chapter. 5. By regulation 635-5-1 (Personnel Separations-Separation Program Designators), members are subject to, separation code JKA is appropriate when the narrative reason for discharge is separation for a pattern of misconduct consisting of discreditable incidents - civilian or military. 6. In reaching its determination, 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. The Board also concluded that the argument made by the applicant of double jeopardy unconvincing, because a civilian conviction is different than an administrative action in the military. Based upon the short term of honorable service completed prior to his misconduct, the Board agreed that the applicant's discharge characterization was warranted. 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. AR 635-200 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) AR20170016140 4 1