ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20170017775


APPLICANT REQUESTS: an upgrade from general discharge under honorable conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Assignment orders to transition center dated 28 June 1999
* 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 that he was discharged erroneously due to assumptions made by his chain of command and was not given a chance to fight the discharge.  He did not receive support from his chain of command.  At the time of discharge he was 19 and upset about the discharge after serving honorably.

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

	a.  He enlisted in the Regular Army on 23 June 1997.

	b.  On 21 May 1998, the applicant received a DA Form 4856 (General Counseling Form) for conduct during a room inspection and the possession of possible gang related paraphernalia.

	c.  On 17 April 1998, a Military Police (MP) investigator conducted an inspection of his room where the gang related paraphernalia was found and scheduled a later interview with him.  At the time of the inspection, the applicant stated he was not affiliated with gangs.            
	d.  On 28 May 1998, a second interview concerning the gang related paraphernalia found was given by another MP investigator.  A National Crime Information Center (NCIC) check was queried on the applicant and returned with negative results showing a prior arrest record but no gang affiliation.

	e.  On 26 July 1998, the applicant was involved in a shooting incident where X__ X_ was injured.  X__ X_ was a witness to the incident and involved in the confrontation.  The applicant was identified as one of the assailants. 

	f.  On 28 July 1998 X__ X_ withdrew as the complainant and X__ X_ withdrew his complaint on 11 August 1998.

	g.  On 3 August 1998, the applicant received a DA Form 4856 from his immediate commander notifying the applicant that he was intending to initiate separation action against him in accordance with Army Regulation (AR) 635-200, Chapter 14-12c [because of the commission of a serious offense.]  He recommended a General Discharge Certificate and cited the specific reasons as:

* Involvement in a gang related incident involving firearms on 25 July 1998.
* Involvement in several gang related activities between April 1998 and February 1999

	h.  On 9 March 1999, his immediate commander submitted a letter of intent to separate him under Chapter 14-12c, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) for [commission of a serious offense.]

	i.  On 11 May 1999, he received and acknowledged a notification of initiation of action under AR 635-200, Chapter 13.  He submitted his election of rights to his immediate commander affirming:

* receipt of notification of separation under 635-200, Chapter 13
* right to submit a rebuttal in seven days
* that military counsel would be available for consultation upon request

	j.  On 24 May 1999, his intermediate commander recommended the request for separation under AR 635-100, Chapter 13-2 (unsatisfactory performance).

	k.  On 7 June 1999, the separation authority approved the separation action and ordered the applicant discharged under AR 635-200, Chapter 13-2a, for unsatisfactory performance, with his service characterized as under honorable conditions (general). 

	l.  The applicant was discharged on 23 July 1999.  His DD Form 214 shows he was discharged under AR 635-200, Chapter 13 due to unsatisfactory performance with an under honorable conditions (general) characterization of service.  He completed 2 years, 1 month, and 1 days of active service.  It also shows he was awarded or authorized the Army Achievement Medal, Army Service Ribbon, and Sharpshooter-Marksmanship Qualification Badge with Rifle Bar (M16).

4.  By regulation, AR 635-200, Chapter 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

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 serious nature of the misconduct which led to the discharge, the Board concluded that the applicant had already received clemency when receiving an Under Honorable Conditions (General) characterization of service.

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 (Personnel Separations-Enlisted Personnel) in effect at the time, provides for the separation of enlisted personnel.

	a.  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.  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 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

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)	 AR20170017775


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