ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20170018137


APPLICANT REQUESTS:  an upgrade of his under honorable conditions, general discharge 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 he is requesting an upgrade so he can qualify for veteran’s affairs benefits.  

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

	a.  He enlisted in the Regular Army on 8 August 1984.  

	b.  He was counseled on various offenses to include his financial status, failure to report to his assigned place of duty, missed formation and a missed dental appointment during the period of 2 January 1985 through 21 May 1986.  

	c.  His DA Form 5180-R (Urinalysis Custody and Report Record) shows the applicant laboratory results was positive for tetrahydrocannabinol (THC), dated            30 September 1985.  

	d.  He accepted nonjudical punishment on 14 November 1985 for wrongful use of marijuana.  

	e.  On 2 December 1985, 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), paragraph 14-12b (pattern of misconduct).  He cited that despite being rehabilitatively transferred he had continued to establish a pattern of misconduct that consisted of discreditable conduct and conduct prejudicial to good order and discipline that included conduct not acceptable to standards of personal conduct found in the uniformed code of military justice, Army regulations, the civil law, and time honored customs and traditions of the Army.  He advised the applicant of his rights.  

	f.  On 2 December 1985, he consulted with legal counsel on the contemplated action to separate him for a pattern of misconduct.  He acknowledged:

* he may submit a statement in his own behalf, he elected to submit a statement on his own behalf, the statement is void in his service record
* the right to consideration of his case by a board of officers
* the right to be represented by counsel or as military counsel, civilian counsel at no expense to the Government
* 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 would be ineligible to apply for enlistment in the U. S. Army for a period of two years after discharge

	g.  On 4 December 1985, his immediate commander initiated action to separate him under the provisions of AR 635-200, paragraph 14-12b (pattern of misconduct).  The Soldier established a pattern of discreditable involvement with civil or military authorities.  Despite being rehabilitatively transferred he continued to display discreditable conduct. 

	h.  Consistent with the chain of command’s recommendation on 9 December 1985, the separation authority approved the request for discharge and directed that he be issued a general discharge certificate, with a Separation Program Designators (SPD), code of JKM.

	i.  The applicant was discharged on 19 December 1985, under the provisions of AR 635-200, paragraph 14-12b (pattern of misconduct) and his service characterization is under honorable conditions (general).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 4 months and 12 days of net active service with no lost time.  

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, 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.  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.  In reaching its determination, 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 did not provide character witness statements or evidence of post-service achievements for the Board to consider.  He was discharged after a pattern of misconduct and was provided an Under Honorable Conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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, provides 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 -12b states Soldiers are subject to separation when a pattern of misconduct consisting of discreditable involvement with civil or military authorities, conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170018137


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