ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170016950 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge to an honorable 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 now believes he has the ability to be a model Soldier. 3. A review of the applicant’s service record shows: a. On 9 March 1999, he enlisted in the Regular Army. b. On 19 August 1999, his commander initiated a Bar to Reenlistment Certificate against him citing his disrespect, failure to return on time, and lack of professionalism. He was furnished with a copy and submitted a statement (unavailable). The available copy of this bar is not signed by the approval authority. c. On 19 November 1999, he accepted an Article 15 for dereliction in the performance of his duties in that he willfully failed to go to guard duty after his appointment. His punishment consisted in part of reduction to E-1. d. On 4 January 2000, he accepted an Article 15 for being disrespectful in deportment towards a staff sergeant. e. On 12 January 2000, the immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14, paragraph 14-12b of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) for misconduct. Specifically, he failed to go to guard duty, he was disrespectful in language and disobeyed two lawful orders form a noncommissioned officer, he was disrespectful in deportment and disobeyed a lawful order from a noncommissioned officer, and he received an Article 15 for disrespect. f. On 12 January 2000, the applicant acknowledged receipt of the commander’s intent to separate him. He consulted with legal counsel and he was advised of the basis of 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 that were available to him. He elected not to submit a statement in his own behalf, and acknowledged: * he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he understood that as a result of the issuance of the discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both federal and State laws * if he received a discharge/character of service that is less than honorable, he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading, however, and act of consideration by either board does not imply that his discharge would be upgraded h. On 12 January 2000, and subsequent to this acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200 for a pattern of misconduct. The commander believed it was not feasible or appropriate to accomplish other disposition because the applicant had displayed a pattern of misconduct. He demonstrated he did not possess the values to maintain his status as a Soldier. The intermediate commander recommended approval with issuance of an under honorable conditions (general) discharge. i On 21 January 2000, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s separation and directed he be discharged under honorable conditions and issued a General Discharge Certificate. The applicant was discharged on 27 January 2000. j. The applicant was discharged on 27 January 2000. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, chapter 14, because of a pattern of misconduct with his service characterized as under honorable conditions (general), His DD Form 214 shows he completed a total of 10 months and 19 days of net active service. 4. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or her, develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 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 not warranted. Based upon a pattern of misconduct over a short term of military service, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. Chapter 3-7a (Honorable Discharge) 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 clearly inappropriate. b. Chapter 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. c. Chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 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. ABCMR Record of Proceedings (cont) AR20170016950 5 1