ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 May 2019

	DOCKET NUMBER:  AR20170017440


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* Personal Statement
* Certification of Review of Criminal Record
* DD Form 214 (Report of Separation 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 while serving in the Army, he was accused of violating a state law.  He was separated from service based on charges filed against him by civil authorities without being formally tried and convicted.  He was found not guilty and did not receive a conviction, see attached Certification of Review of Criminal Record.  Prior to being charged, he served honorably, faithfully, and carried out all orders from superior officers and performed his duties with the utmost professionalism.

3.  The applicant provides:

	a.  A detailed self-authored statement which describes his military and personal experiences, and the incident (detailed letter enclosed in packet).

	b.  Certification of Review of Criminal Record from the state of Georgia, states that the applicant was placed on probation on 11 January 2005 for 12 years.  The applicant was discharged as a matter of law.  The criminal docket and all other pertinent records shows:

* the defendant is discharged without adjudication of guilt
* this discharge shall completely exonerate the defendant and criminal purpose
* defendant's civil rights or liberties shall not be affected
* defendant shall not be considered to have a criminal conviction

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

	a.  He enlisted into the U.S. Army Reserve on 24 July 1997.

	b.  He reenlisted into the Regular Army (RA) on 18 September 2000 and extended his enlistment for six years on 2 December 2003.  He served at Fort Benning and Fort Stewart, GA.

	c.  On 17 August 2004, he was arrested for the following offenses:

* false statements and writings
* aggravated sexual battery
* statutory rape
* child molestation
* aggravated child molestation
* enticing a child for indecent purposes

	d.  On 25 August 2004, he was given a mental status evaluation.  The examiner determined he has the mental capacity to understand and participate in proceedings, and was mentally responsible.  He was psychiatrically cleared for any action deemed appropriate by his command.

	e.  On 12 October 2004, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for commission of a serious offense.  The reasons for the proposed action is stated in paragraph 4c above.  The immediate commander recommended that he receive a discharge under other than honorable conditions.  The immediate commander advised the applicant of his right to:

* consult with counsel or retain civilian counsel at no expense to the government
* obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative separation board
* submit statements in his own behalf
* waive any of these rights in writing
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge
* submit a conditional waiver of his right to have his case heard before an administrative separation board
* undergo a complete medical examination and mental status evaluation IAW AR 40-501 (Standards of Medical Fitness)

	f.  On 12 October 2004, he acknowledged receipt of the immediate commander’s decision to recommend him for separation.  He consulted with legal counsel on 20 October 2004, and he was advised of the basis for the contemplated action to separate him for commission of a serious offense.  He waived his rights contingent on receiving a characterization of service or description of separation no less favorable than honorable conditions.  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 Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded.

	g.  On 20 October 2004, the immediate commander initiated separation action against the applicant under AR 635-200, paragraph 14-12c, commission of a serious offense.  The applicant's intermediate commander recommended approval that the applicant be issued an under other than honorable conditions discharge and not transferred to the Individual Ready Reserve (IRR).

	h.  On 1 November 2004, the intermediate commander recommended that under the provisions of AR 635-200, chapter 14, paragraph 14-12c, commission of a serious offense, the applicant be separated from the service with an under other than honorable conditions discharge, prior to his expiration of term of service.  The intermediate commander also recommended the applicant’s request for a conditional waiver for an honorable discharge be disapproved and not be transferred to the IRR.  

	i.  On 15 November 2004, the appropriate authority disapproved the applicant's request for a conditional waiver and directed an administrative separation board be convened.

	j.  On 17 November 2004, the Staff Judge Advocate informed the approval authority of the chain of command’s request to obtain a decision for an administrative separation for the applicant.

	k.  On 7 December 2004, the applicant acknowledged receipt of notification to appear before the administrative separation board.  On 10 January 2005, the applicant waived consideration for an administrative separation board and acknowledged his understanding that he may be ineligible to any future enlistment in the Army.
	l.  On 12 January 2005, the separation authority approved the request for discharge under the provisions of AR 635-200, chapter 14 and directed an under other than honorable conditions discharge.  In addition, reduction to the lowest enlisted pay grade in accordance with AR 600-8-19 (Enlisted Promotion and Reduction) and not be transferred to the IRR.

	m.  The applicant was discharged from active duty on 22 February 2005.  His DD Form 214 show she was discharged under the provisions of AR 635-200, paragraph    14-12c with an under other than honorable conditions characterization of service.  He completed 7 years, 5 months, and 6 days of active service.  His DD Form 214 shows he was awarded or authorized:

* Army Commendation Medal
* Army Achievement Medal (2nd Award)
* Presidential Unit Citation (Army)
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* War on Terrorism Expeditionary Medal
* War on Terrorism Service Medal
* Army Service Ribbon

5.  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.

6.  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 the seriousness of the misconduct which led to the discharge, 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 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.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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.  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.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under paragraph 14-12c of Army Regulation 635-200 by reason of patterns of misconduct. 

4.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  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.  

5.  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)	 AR20170000830


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