ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180000452 APPLICANT REQUESTS: * upgrade of his general discharge under honorable conditions to honorable * change current separation (SPD) code of "JKM" 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) * DD 293 (Application to the Army Discharge Review Board) * State Bureau of Investigation Report FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 has been out of the service for 30 years and his behavior has been good. In addition to asking the Board for relief, he is also requesting a pardon from a governor. 3. The applicant provides a State Bureau of Investigation Report that indicates civilian police arrested him on three occasions (all in 1988). Two of the charges were dismissed, and a civil court tried and convicted him of the remaining crime; he was sentenced to paying a fine and serving 11 days in jail. 4. The applicant's service records show: a. He enlisted into the Regular Army on 15 November 1984 for a 4-year term. Following initial training, orders assigned him to Fort Carson, CO; he arrived on or about 5 June 1985. b. On 9 January 1986, the applicant's Fort Carson commander initiated a bar to reenlistment action against him. The commander's reasons were: the applicant was pending trial by court-martial for shoplifting and, on 2 January 1986, he had received a company-grade nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for larceny. The battalion commander approved the bar to reenlistment. c. On 11 January 1986, the applicant was detained by an Army and Air Force Exchange Service employee at the main exchange because he had removed price tags from lower priced merchandise and placed the tags on blank cassette tapes. He then attempted to leave without paying; the military police apprehended the applicant on their arrival at the main exchange. The blotter entry further stated, previously on 24 November 1985, the military police apprehended the applicant for larceny. d. On 25 April 1986, a special court-martial convicted the applicant of larceny under false pretenses by wrongfully placing a lower price on two blank cassette tapes. The military judge sentenced him to 3 months confinement and forfeiture of $426 per month for 3 months. On 22 May 1986, the special court-martial convening authority approved the sentence and ordered its execution. e. On 28 October 1986, the applicant accepted NJP for assaulting a fellow Soldier during a battalion formation. f. On 11 January 1988, the applicant's chain of command counseled him regarding his duty performance and past misconduct for the period 28 February 1986 through 11 January 1988. The following misconduct was specifically noted: court-martial for larceny; company-grade NJP for larceny; two summarized NJPs, respectively for issuing a dishonored check and assaulting a fellow Soldier. The applicant was advised he would be eliminated from the service if he did not improve. On 11 February 1988, a noncommissioned officer (E-8) noted the applicant was nonresponsive, in that he had since received a company-grade NJP for missing guard duty; the applicant was to be processed for elimination. g. On 15 March 1988, the applicant's commander advised him in writing of his intent to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct). The commander's reasons were the applicant's court-martial, three NJPs, and because the applicant had been counseled regarding his performance both on and off duty. h. On 16 March 1988, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for this action, his available rights, and the effect of waiving those rights. He waived his rights, contingent on receiving a general discharge under honorable conditions, and elected not to make a statement in his own behalf. i. On 31 March 1988, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 7 April 1988, he was discharged accordingly. His DD Form 214 shows he completed 3 years, 2 months, and 8 days of his 4-year enlistment. He was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. The separation authority was AR 635-200, paragraph 14-12b; the SPD code was "JKM." 5. The applicant contends, in effect, he has not been involved in any misconduct since his discharge; he is also seeking a pardon from the governor of the State in which he committed civilian offenses. 6. Regulatory guidance required commanders to separate Soldiers who displayed a pattern of misconduct, involving acts of discreditable involvement with civil or military authorities, and/or acted in a manner that was prejudicial to good order and discipline. In addition, SPD codes were assigned based on the separation authority, per AR 635-5-1 (SPD Codes). The "JKM" SPD was the correct code for those Soldiers separated under AR 635-200, paragraph 14-12b. 7. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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 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, and the appropriate separation code was provided. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 3. AR 635-5-1, in effect at the time, listed SPD codes along with their associated separation authorities and narrative reasons for separation. The SPD "JKM" was the correct code for Soldiers separated under AR 635-200, paragraph 14-12b. 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 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 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. 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) AR20180000452 5 1