ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20170017000


APPLICANT REQUESTS: 

* Upgrade of his under other than honorable discharge
* Personnel appearance before the board

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 wrong and should have reach out for help instead of acting out in a negative way.  He realized now and has changed his life.  He didn’t know how to express his pain and feeling.  After joining the military, he lost touch with his family support and lashed out in the worst way.  He realized what he did and has learned from his actions and would like a second chance.  

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

	a.  He enlisted in the Regular Army on 5 July 1995.

	b.  He accepted nonjudicial punishment under Article 15 on/for:

* 21 April 1997 for failure to be at your appointed place of duty
* 15 January 1998, made a false official statement

	c.  The applicant's immediate commander notified the applicant on 11 February 1998  that he intended to initiate action on him for elimination from military service under the provisions of (AR) Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 14-12c, for Commission of a serious offense.  The reasons for his proposed actions are as follows, made official false statement, sold military property, driving under the influence, indebtedness, disrespect to a Noncommission officer, numerous failure to reports and failure to follow instructions.

	d.  On 11 February 1998, the applicant acknowledged receipt of a copy of the memorandum, notifying him of the discharge action pending against him.  His immediate commander recommended the applicant be separated in accordance with AR 635-200 chapter 14-12c.

	e.  The applicant consulted with counsel 17 February 1998 and acknowledged receipt of the notification.  He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	f.  On 20 March 1998, consistent with the chain of command's recommendation, the separation authority approved the applicant’s discharge with an under other than honorable conditions discharge and reduction to the lowest enlisted pay grade.
	g.  On 16 April 1998, he was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 14-12c (misconduct) with an under other than honorable conditions characterization of service.  He completed 2 years, 9 months, and 12 days of active service.

5.  The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation.

6.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

7.  By regulation, commanders are authorized to initiate separation action against Soldiers for various types of misconduct including those who commit a serious offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

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 DOD 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 outlined within the administrative separation notification, as well as the lack of demonstration of accepting responsibility for the misconduct and a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.  Paragraph 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 12c of that regulation provides that members are subject to separation for commission in a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.
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 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)	 AR20170017000


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