ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20180000315


APPLICANT REQUESTS:  an upgrade of his under honorable conditions 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 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 after 25 years he would like to correct some the mistakes he made when he was younger and immature.  He started having marital problems after Desert Storm and started abusing drugs and alcohol.  He feels as though he has matured from that time period and would like his discharge upgraded.

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

a. He entered active duty on 7 March 1990.

b. On 11 November 1992, the applicant’s immediate commander notified the
applicant of his intent to initiate separation action against him under the provisions of paragraph14-12c of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), due to commission of a serious offense.  He was driving under the influence of alcohol.

c. The applicant acknowledged receipt of the commander's intent to separate him
on 11 November 1992.  He waived consulting legal counsel and representation by military counsel and civilian counsel at no expense to the Government.  He was advised of the importance of consulting with legal counsel, and the consequences of waiving that right.  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  

d. Subsequent to this acknowledgement and consultation with counsel, his
immediate commander initiated separation action against him due to commission of a serious offense in accordance with AR 635-200, chapter 14-12c.  His chain of command recommended approval.

e. On 16 November 1992, 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 2 December 1992.

f. His DD Form 214 confirms he was discharged for misconduct, Separation Code
JKO, under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as general under honorable conditions.  He completed 2 years, 8 months and 24 days of active service.

4.  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 JKK.  The RE Code associated with this Separation Code is RE-3.  

b. Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, are
assigned the Narrative Reason for Separation as "Misconduct - commission of a serious offense."  

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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the misconduct within record and an insufficient amount of colloborating character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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.  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.  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)	 AR20180000315


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