ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20170017186


APPLICANT REQUESTS:  an upgrade to his under other than honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Achievement 
* Certificate of appreciation
* Da Form 2166-7 (NCO Evaluation Report)
* Battalion Commander Recommendation for Separation

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, in effect, he is trying to better himself through employment, but employers require a better than an under other than honorable discharge.

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

	a.  Having had prior service, he enlisted in the Regular Army on 17 May 1995.

	b.  He accepted nonjudicial punishment on 29 January 1999 for without authority and with intent to remain away therefrom permanently, absent himself from his unit from 9 December 1998 to 12 January 1999.  His punishment included reduction to Specialist/E4, forfeiture of $600.00 per month for two months, extra duty for 45 days, and restriction for 30 days (suspended, to be automatically remitted if not vacated before 30 March 1999).

	c.  On 22 February 1999, his immediate commander notified the applicant that he was initiating a separation action against him under the provisions (UP) of Army Regulation (AR) 635-200, paragraph 14-12(c).  The reason for the proposed actions was for receiving a Field Grade Article 15 for Desertion.  He also acknowledged receipt of this action.

	d.  On 19 March 1999, he withdrew his request for a conditional waiver.  He consulted with legal counsel and was advised the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged:

* he would submit a statement in his own behalf
* he waived his right to have his case considered by an administrative separation board
* he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service discharge would be upgraded
 
      e.  On 2 April 1999, consistent with the chain of command recommendations, the approval authority approved the separation under the provisions of AR 635-200, paragraph 12-c and issued an Under Other Than Honorable Conditions Discharge Certificate.

	f.  The applicant was discharged from active duty on 27 April 1999.  His DD 
Form 214 shows he was discharged under the provisions of AR 635-200,        paragraph 14-12c with an Under Other Than Honorable conditions characterization of service.  

     g.  He completed 3 years, 10 months and 7 days of net active service.  He was awarded or authorized the Army Commendation Medal, Army Achievement Medal (2nd award), Army Good Conduct Medal, National Defense Service Medal, Southwest Asia Service medal with 2 bronze service star, Noncommissioned Officer’s professional Development Ribbon, Army Service Ribbon, Kuwait Liberation Medal, Kuwait Liberation medal (SA).

4.  By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.
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 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.  Based upon the lengthy AWOL offense, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense.

	b.  Paragraph 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 be clearly inappropriate.

	c.  Paragraph 3-7b (General Discharge) a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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)	 AR20170017186


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