ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  
	BOARD DATE:  19 August 2019

	DOCKET NUMBER:  AR20180001212


APPLICANT REQUESTS:  

* an upgrade of his general, under honorable conditions discharge to honorable
* a change of his narrative reason for separation (remove misconduct)

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 he would like an upgrade based on the fact that his wife was having an abortion back in 1997 and he struggled with the guilt, shame and substance abuse.  He smoked marijuana and drank alcohol, but has been clean and sober for the past 6 and a half years.  He has earned an Associate’s of Arts Degree in Religion and is certified by the Arizona Department of Environmental Quality at the Wastewater Treatment Plant Operator Level.  He is an active member of his church and his discharge has affected his employability.  He asks the Board to consider expunging his past mistake and thanks for consideration. 

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

	a.  He enlisted in the Regular Army on 2 June 1997.

	b.  On 14 November 2001, his immediate commander notified the applicant of his initiation action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for commission of a serious offense, Chapter 14-12c.  His reasons for separation were for the applicant’s multiple use of marijuana and driving while under the influence of alcohol.  
 
	c.  On 14 November 2001, the applicant acknowledged receipt of the letter of notification and his election of rights and after consulting with legal counsel, he acknowledged:

* the rights available to him and the effect of waiving said rights
* statements on his own behalf, he elected not to submit one
* consulting with counsel at no expense to the government
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may apply to the ADRB or the ABCMR for upgrading
* he is ineligible to apply for enlistment in the Army at any time after discharge IAW AR 601-280 (Army Retention Program)

	d.  On 15 February 1989, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 14 for a commission of a serious offense.  He would be issued a General Under Honorable Conditions Discharge Certificate.

	e.  He was discharged from active duty on 28 December 2001, under the provisions of AR 635-200, Chapter 14, paragraph 14-12c for commission of a serious offense with an under honorable conditions (General) character of service and the narrative reason for separation is misconduct.  His DD Form 214 shows he completed 4 years, 6 month and 27 days of net active service.   It also shows he was awarded or authorized the Army Service Ribbon.

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, Soldiers are subject to separation for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.

6.  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 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 for a criminal offense and was provided an under honorable conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization and reason for separation 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.  AR 635-200 (Personnel Separations –Enlisted Personnel), in effect at the time, sets forth the basic authority 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.  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 Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 of that regulation prescribes for the separation of enlisted members for misconduct.  It states, in pertinent part, Soldiers are subject to separation for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.

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)	 AR20180001212


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