ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20170019300 APPLICANT REQUESTS: an upgrade of his general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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, in effect, he was not selected for promotion to E-7 and found out that his packet wasn't submitted. He got upset. Out of anger, he made comments about getting out. His sergeant major (SGM) overheard him and called him out on it. After speaking with his wife that evening, they agreed for him to get out. He informed the SGM of his decision. The applicant did not realize that his discharge would be a general discharge nor did he realize that it would prevent him from getting some benefits. An honorable discharge will allow him access to benefits that come with being I00 percent service-connected disabled. 3. Review of the applicant's service records show: a. He enlisted in the Regular Army on 18 April 1989. He served through multiple reenlistments on 8 January 1993, 7 December 1995, and 16 April 1998. b. On 22 September 1997, the applicant accepted nonjudicial punishment (NJP) for maltreatment of a subordinate. c. A memorandum from the 417th Base Support Battalion Provost Marshal Office addressed to the commander, with a suspense date of 29 December 2000, request for Commander's Report of Disciplinary or Administrative Action regarding the applicant. a. The memorandum was accompanied with a military police report outlining the charge of adultery against the applicant. d. It is unknown the exact date the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-12c of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) due to commission of serious offense. e. The applicant acknowledged receipt of the commander's intent to separate him. He declined to consult with appointed counsel for consultation, or military counsel of his own choice. He was advised by his commanding officer of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected to waive consideration of his case by an administrative separation board. He also elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded f. It is unknown the exact date as to when the separation authority approved the applicant's discharge under the provisions of paragraph 14-12c of AR 635-200, with his service characterized as general under honorable conditions. The applicant was discharged accordingly on 6 February 2001. g. His DD Form 214 confirms he was discharged on 6 February 2001 for misconduct, Separation Code JKQ, under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as general under honorable conditions. He completed 11 years, 9 months, and 19 days of active service. 5. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. Soldiers separated under Army Regulation (AR) 635-200, paragraph 14-12c, misconduct, are assigned the Separation Code JKQ. The RE Code associated with this Separation Code is RE-3. a. b. Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, are assigned the Narrative Reason for Separation as "misconduct." 6. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that he applicant had prior honorable service which was not currently reflected on his DD Form 214 and recommended that be changed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 8 January 1993 until 15 April 1998.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 6/21/2019 X CHAIRPERSON Signed by: 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. AR 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. Army Regulation (AR) 635-5 (Personnel Separations - Separation Documents), paragraph 2-4d(18)4(c), provides enlisted Soldiers with more than one enlisted period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates). However, for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistments as prescribed above. 4. 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 1. 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//