ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20170017282


APPLICANT REQUESTS:   an upgrade to his 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 was young when he signed up and did not realize the consequences of his actions.  His sole purpose of joining the Army was to be able to go to college.  He is thankful for all the Army has given him, but he would like the ability to further himself by going to college.  Furthermore, it was an honor to serve.  

3.  A review of his service record shows:  

	a.  He enlisted in the Regular Army on 29 June 1995.

	b.  He accepted nonjudicial punishment on 28 August 1997, 7 October 1997 and    14 January 1998 for wrongful use of marijuana.  

   c.  He received four counseling’s for failure to report between the period of             30 December 1997 and 13 January 1998.

   d.  On 10 March 1998, 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 for the commission of a serious offense (wrongful use of marijuana) and misconduct.  

   e.  On 10 March 1998, he acknowledged receipt of the notification of the separation 
action.  

   f.  On 17 March 1998, after consulting with legal counsel, he acknowledged:

* the right to submit a statement on his own behalf, he elected not submit a statement 
* the rights available to him and the effect of waiving said rights
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading
* he is ineligible to apply for enlistment in the Army for 2 years after discharge

	g.  On 30 March 1998, consistent with the chain of command recommendations, the 
separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 14 and directed he be issued a General Discharge Certificate.  

   h.  He was discharged on 13 April 1998 with an under honorable conditions (general) characterization of service.  His DD Form 214 shows he completed 2 years,   9 months and 15 days of net active service.  It also shows he was awarded or authorized the:

* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Marksmanship Qualification Badge with Grenade Bar

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation, members are subject to separation for commission of 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.  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.

6.  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 accepted responsibility for the events leading to his separation.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the pattern of misconduct, which included multiple drug offenses, in additional to the applicant already receiving an Under Honorable Conditions (General) 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets 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 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of 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.

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 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170017282


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