ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    26 April 2019

	DOCKET NUMBER:  AR20170018291


APPLICANT REQUESTS:  His general discharge be upgraded to an honorable 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)

FACTS:

1.  The applicant contends his discharge was unfair, unjust, and was done in an improper way.  He received no nonjudicial punishments (NJP) along with the discharge processing.  He was given the option to fight the discharge but because of the way his superiors treated him, he chose not to.  He needs the upgrade to utilize his Department of Veterans Affairs (VA) educational benefits.

2.  The applicant enlisted in the Regular Army on 12 September 2008.

3.  The applicant received not less than 21 negative general counseling statements between 6 January 2010 and 2 March 2011, for the following diverse reasons: 

* twice testing positive for illegal drugs 
* disobeying a direct order from a noncommissioned officer
* failing to report for an Army Substance Abuse Program appointment
* failure to report for duty (on 7 occasions)
* reporting for duty in the wrong uniform (on 2 occasions)
* loss of military issued equipment
* failure to report to his squad leader his change of duty 
* failure to answer his phone (for a duty call)
* sleeping during extra duty
* violating grooming standards by reporting for duty without having shaved (on 5 separate occasions and once for needing a haircut)
* fleeing a scene of an accident (hit and run) and failure to report the accident within 72 hours

4.  The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 28 January 2010, for illegal use of marijuana on 2 separate occasions
* on 15 November 2010, for failure to go to his place of duty (on 2 occasions) and disobeying a lawful order from a noncommissioned officer

5.  The applicant's immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  The applicant acknowledged receipt of the proposed separation memorandum on 28 March 2011.

6.  The applicant consulted with counsel on 28 March 2011, acknowledged the formal separation proceedings, and waived his right to submit a statement in his own behalf and to further consult with and be represented by counsel.  

7.  The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b, pattern of misconduct

8.  The appropriate separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b and directed that the applicant receive a general discharge.

9.  The applicant was discharged on 30 April 2011.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  His service was characterized as under honorable conditions (general).  

10.  The Army Discharge Review Board denied the applicant's request for an upgrade on 13 July 2016.

11.  The Board should consider the applicant's statement 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 multiple documented UCMJ violations, over extended periods of time, the Board concluded that characterization of service received at the time of discharge was generous.  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.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that 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.

	b.  Paragraph 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 14-12b provides that a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  

	a.  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 on the basis of equity, injustice, or clemency grounds, Boards 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.  

	b.  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)	 AR20170018291
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