ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 May 2019

	DOCKET NUMBER:  AR20170017889


APPLICANT REQUESTS:  an upgrade to his general discharge

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)
*	Self-Authored letter

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 served over nine years, but was too immature to sustain his 
time during his service.  His life has manifested so much and it warrants an honorable 
upgrade.

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

	a.  He enlisted in the Regular Army on 23 July 1979.

	b.  He accepted nonjudicial punishment (NJP) on/for:

*	20 October 1987, for three specifications of without authority failing to go at 
the time prescribed to appointment
*	29 January 1988, for one specification of without authority failing to go at the 
time prescribed to appointment and make and utter 34 worthless checks, 
totaling a value of $938.47.  His punishment consisted of reduction to E-4

	c.  He was convicted by a special court-martial of one specification of wrongfully 
appropriating $80.00 belonging to another Soldier and writing 63 bad checks.  His 
sentence included reduction to private/E-1, forfeiture of $447.00 pay per month for three 
months, confinement to hard labor for three months.

	d.  The convening authority approved the sentence and ordered it executed.  But the 
forfeiture of $447.00 pay per month for three months is suspended for nine months 
upon the condition that not later than 30 days from the date of this action, the accused 
set up with the Army Community Services for a debt liquidation plan to cover the debts. 

	e.  On 8 March 1989, his immediate commander notified him that he intended to 
initiate action to separate him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations - Enlisted Personnel), Chapter 14-12b (Patterns of Misconduct) 
for actions of misconduct which resulted in receiving Article 15, court-martial and recent 
history of failing to report for duty.

	f.  On 8 March 1989, he was advised by his consulting counsel of the basis for the 
contemplated action to separate him for a pattern of misconduct under AR 635-200. 
Chapter 14-12b and its effects; of the rights available to him; and the effect of any action 
taken by him in waiving his rights.  He understood that if he had less than six years total 
of active and reserve military service at the time of separation and is being considered 
for separation for reason of misconduct under AR 635-200, Chapter 14, he is not 
entitled to have his case heard by an administrative separation board unless he is being 
considered for a discharge under other than honorable conditions.

	g.  Consistent with the chain of command’s recommendations, the separation 
authority approved the applicant’s discharge under the provisions of AR 635-200, 
Chapter 14-12b.

	h.  He was discharged on 28 April 1989.  His DD Form 214 (Certificate of Release of 
Discharge from Active Duty) shows he was discharged in accordance with chapter 14 of 
Army Regulation 635-200 (Personnel Separations) with a general discharge.  It also 
shows he completed 9 years, 6 months, and 20 days of active service with lost time 
from 26 October 1988 to 9 January 1989.  He was awarded or authorized the: 

*	Army Achievement Medal (1 OLC)
*	Good Conduct Medal
*	Army Service Ribbon
*	Overseas Service Ribbon
*	Driver’s Badge
*	M16 Rifle (sharpshooter)
*	Hand Grenade (marksman)

	i.  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.  In determining whether to grant relief on the basis of 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.

	j.  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 found the relief was not warranted.  Based upon the misconduct and the 
applicant already receiving a general discharge, the Board found no evidence of an 
error or injustice which would warrant making a change to the characterization of 
service of the applicant’s discharge.

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 Separations), in effect at 
time, provides for the separation of enlisted personnel.

	a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a 
separation with honor.  Issuance of an honorable discharge will be conditioned upon 
proper military behavior and proficient performance of duty during the member’s current 
enlistment of current period of service with due consideration for the member’s age, 
length of service, grade, and general aptitude.  Where a member has served faithfully 
and performed to the best of his ability and has been cooperative and conscientious in 
doing his assigned tasks, he may be furnished an honorable discharge.  Where there 
have been infractions of discipline, the extent thereof should be considered, as well as 
the seriousness of the offense(s).  A member will not necessarily be denied an 
honorable discharge solely by reasons of a specific number of convictions by courts-
martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the 
pattern of behavior and not the isolated instance which should be considered the 
governing factor in determination of character of service to be awarded.

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation 
from the Army under honorable conditions of an individual whose military record is not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 1-18 (Counseling and rehabilitative requirements) Commanders will 
insure that adequate counseling and rehabilitative measures have been taken, before 
initiating action to separate a member for one of the following reasons:

*	Inability to perform prescribed duties due to parenthood (para 5-8)
*	Personality disorder (para 5-13)
*	Entry level performance and conduct (chap 11)
*	Unsatisfactory performance (chap 13)
*	Minor disciplinary infractions or a pattern of misconduct (para 14-12a/b

	d.  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)	 AR20170017889

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