ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170017534


APPLICANT REQUESTS:  his general discharge be upgraded 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 that he was advised after a period of time he could request an upgrade of his discharge.  He tried to stay in but someone did not want him in the Army.

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

	a.  He enlisted in the Regular Army on 12 January 1999.

	b.  His service record contains twelve (12) negative general counseling statements received between 16 April 1999 and 16 July 1999, and nonjudical punishment under Article 15 for failure to go to at the time prescribe to appointed place of duty.

	c.  On 24 August 1999, the applicant's company commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR)       635-200 (Personnel Separations), chapter 14, paragraph 14-12b for a pattern of misconduct.  

		(1)  The reasons for the proposed action are as follows:

* failure to be at appointed place of duty
* failure to secure money, credit cards and checks
* uttering checks without sufficient funds
* insubordinate conduct toward a noncommissioned officer
* failure to be in proper uniform
* smoking in violation of the Company Standard Operating Procedure

		(2)  The company commander recommended that he receive a general discharge under honorable conditions.  The company 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
* could not request a hearing before an administrative separation board, due to having less than 6 years of active and reserve military service, unless he is being considered for other than honorable conditions discharge
* 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

	d.  On 24 August 1999, the applicant acknowledged receipt of the notification.  He acknowledged that: 

* he had been advised by his consulting counsel on the basis for the contemplated action to separate him for pattern of misconduct
* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he waived his right to counsel
* statements would be submitted in his own behalf (his statement is unavailable for the Board to review)
* he understood 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

	e.  Subsequent to this acknowledgement, the immediate commander recommended the applicant's separation under the provisions of AR 635-200, chapter 14, paragraph 14-12b, for pattern of misconduct.

	f.  On 24 August 1999, the applicant's intermediate commander recommended the applicant be separated under the provisions of AR 635-200, chapter 14, paragraph    14-12b, pattern of misconduct and the applicant's characterization of service be general under honorable.
	g.  The separation authority approved the request for discharge under the provisions of AR 635-200 (Personnel Separations), chapter 14-12b, pattern of misconduct and ordered the applicant receive a General Discharge Certificate. 

	h.  On 13 October 1999, the applicant was discharged from active duty under the provisions of AR 635-200 (Personnel Separations), paragraph 14-12b with an under honorable conditions (general) characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months, and 2 days of active service.  

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 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 short term of service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	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.


ABCMR Record of Proceedings (cont)	 AR20170017534
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