ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170016549


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 received a general, under honorable conditions discharge because of bad decisions he made as a young man while drinking on and off duty.  He feels his time served was otherwise very honorable having received numerous awards and medals.  He is very proud of his time served and would like his records to show that.  He has made many changes for the better in his life and one thing he is very proud of is his service.

3.  A review of the applicant’s service records show:

	a.  He enlisted in the Regular Army on 25 January 1989.

	b.  He served in Hawaii from 14 May 1989 to 21 January 1992.

	c.  He received nonjudicial punishment on/for:

* 13 December 1989, for wrongfully using marijuana; his punishment included reduction to private (PVT)/E-1
* 8 March 1990, for drinking underage, drinking while on duty, and disobeying a lawful order
* 20 August 1990, for drinking underage; his punishment included reduction to PVT/E-1
* 12 December 1990, for being drunk and disorderly, disrespecting a noncommissioned officer, being drunk on duty, and violating a lawful order

	d.  On 3 May 1991, he received a letter of reprimand from his brigade commander for driving under the influence of alcohol and on 11 June 1991, the commanding general filed the letter of reprimand in his official military personal file.

	e.  On 8 July 1991, his battalion commander approved a Bar to Reenlistment Certificate on the applicant for misconduct, bad job performance, failure to obey the Uniform Code of Military Justice, and drug and alcohol failure.

	f.  On 19 July 1991, his immediate commander notified the applicant of his intent to initiate action that may result in the applicant’s separation from the Army under the provisions of paragraph 13-2, chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations).  He recommended a General Discharge Certificate be issued.

	g.  On 19 July 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for unsatisfactory performance under AR 635-200, chapter 13, paragraph 13-2, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood that if he received a discharge certificate with a characterization of service which is less than honorable, he may apply to the Army Discharge Review Board of Army Board for Correction of Military Records for an upgrade
* he would be ineligible to apply for enlistment in the Army or any of the other armed forces for a period of 2 years after discharge

	h.  On 19 July 1991, his immediate commander initiated action to eliminate the applicant under the provisions of AR 635-200, chapter 13, paragraph 13-2 for unsatisfactory performance, inability to adapt to the military, and minor disciplinary infractions and recommended a general discharge.

	i.  On 19 July 1991, the separation approval authority approved the request for discharge and issued a General Discharge Certificate.

	j.  He was discharged from active duty on 30 July 1991 with a general, under honorable conditions characterization of service.  His DD Form 214 shows he completed 2 years, 6 months, and 6 days of active service.  It also shows he was awarded or authorized:

* Army Achievement Medal
* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Automatic Weapon
* Expert Marksmanship Qualification Badge with Hand Grenade Bar

4.  By regulation, commanders will separate a member for unsatisfactory performance when it is clearly established that in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier or the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and morale.  The serve of members separated because of unsatisfactory performance will be characterized as honorable or general, under honorable conditions as warranted by their military record.

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, the Board determined there is insufficient evidence to grant relief.  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.  Based upon the pattern of misconduct, as well as 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 agreed that the applicant's discharge characterization was warranted as a result of the misconduct.


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 (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority 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 13 of that regulation states commanders will separate a member for unsatisfactory performance when it is clearly established that in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier or the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and morale.  The serve of members separated because of unsatisfactory performance will be characterized as honorable or general, under honorable conditions as warranted by their military record.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards of Correction of Military/Naval Records regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, injustice, or clemency grounds, BCMRs shall consider the twelve states principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20170016549


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