ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20180002344


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge 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 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 that he was an honorable and law abiding citizen who served 6 years of his life in the U.S. Army.  He should be eligible for the benefits that he so well earned and deserved.  This would assist him to continue to grow in life as a man and U.S. citizen.

3.  Review of the applicant’s military record shows:

	a.  He enlisted in the Regular Army (RA) on 8 March 1983.  He held military occupational specialty 13B (Cannoneer).  He reenlisted in the RA on 31 December 1986.

	b.  He served in Germany from 11 January 1985 to 6 March 1987.  He was promoted to pay grade E-5 on 8 December 1987.

	c.  His record is void of the complete facts and circumstances surrounding his discharge.  However, the available record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged from active duty, in pay grade E-1, on 21 March 1989, under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), for Misconduct – Pattern of Misconduct.  His service was characterized as under other than honorable conditions.  The form also shows he was credited with 6 years and 14 days of net active service and he was awarded/authorized the:

* Army Good Conduct Medal with two bronze loops
* Army Service Ribbon
* Overseas Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

4.  By regulation (AR 635-200), action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, chapter 14-12b.

5.  In reaching its determination, the Board can consider the applicants 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.  The record is absent information on the criminal offense leading to his court-martial charge, and he did not mention the misconduct or accept responsibility for his actions.  Based upon his voluntary request to separate in lieu of court-martial, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed 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 for the period ending 21 March 1989:  “Continuous honorable active service from 19830308-19861230.”

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.

	 
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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a (Honorable discharge) – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met, the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General discharge) – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a member whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 -12b – members were subject to separation for misconduct when it was clearly established that despite attempts to rehabilitate and/or develop him or her as a satisfactory Soldier, further effort was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b.

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 (BCMNRs) regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMNRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMNRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) 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 for which DD Form 214 was not issued) Until (date before commencement of current enlistment).

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180002344


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