ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20180003580


APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable.

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:

	a.  Since his discharge, he became a service connected Veteran that has learned and rehabilitated with an excellent record.  He has retired from the United States Postal Service (USPS) after 30 years of excellent service.  He states the rehabilitating process resulting from his misconduct has drastically changed him since the date of his discharge.  

	b.  During his life working at the USPS, he was elected and served as the local president for the (National Postal Mail Handlers Union (NPMHU) Local 313, San Juan, PR, for over 15 years.  His ability to follow rules and regulations was the leading path in his career.  He shares he pastors a local church since 2010 and has been the institutional chaplain for a correctional institution for the last three years.  He states he has not used drugs and/or illegal substances of any kind since his discharge.  He adds, his Department of Veterans Affairs (VA) records can attest to his statement.

	c.  He states he was awarded an Army Good Conduct Medal and has a service connected disability rating for surgeries performed while on duty.  He is requesting to have his discharge updated from a general under honorable conditions to honorable, taking into consideration the positive change he has made for himself and other since his discharge.  The applicant states his discharge status should be updated in order to be concurrent with the actual laws and regulations.

3.  The applicant’s DD Form 293 referenced he provided the following documents listed in block 8 (In Support of This Application, The Following Attached Documents are Submitted as Evidence)) to be considered by the board.  However, his application packet was void of the stated documents:

* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* Good Conduct Certification
* 300 Law – Sex Offender and Child Abuse Registry Certification
* driving license
* DCR (Correctional and Rehabilitation Department) Chaplain Certificate

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

	a.  He enlisted in the Regular Army on 30 November 1983.

	b.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 on/for

* on 14 September 1984, for wrongfully using marijuana; his punishment consisted in part of a reduction in rank to private/E-1
* on 3 June 1986 (should read 3 July 1986 on the DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ)), for failing to go to the appointed place of duty at the prescribed time on 29 June 1986
* 26 February 1987, for dereliction of duty by negligently failing to ensure the weapons post, guarding an M-60, was properly secured; his punishment consisted in part of a reduction in rank to private first class/E-3
* on 7 May 1987, for wrongfully using an amount of cocaine, and marijuana on or about 14 April 1987; his punishment consisted in part of a reduction in rank to private/E-1

	c.  On 11 May 1987, the applicant and his immediate commander signed a 
DA Form 4126 (Bar to Reenlistment Certificate), notifying him that a recommendation for a bar to reenlistment had been initiated against him due to his record of NJP.  He acknowledged he received a copy of this bar and that he had been counseled and advised on the basis for the action.  The applicant declined making a statement on his behalf.

	d.  The Bar to Reenlistment recommendation was approved by the applicant’s battalion commander on 13 May 1987.

	e.  On 6 July 1987, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 
14-12c, with the recommendation that he receive a General Discharge, Certificate, for misconduct, the commission of a serious offense, and use of cocaine and marijuana.  His commander informed him of his right to consult legal counsel and the opportunity to submit written statements on his behalf.

	f.  On 6 July 1987, The applicant acknowledged receipt of the commander’s intent to separate him.  On 7 July 1987, he consulted with legal counsel who advised him of the basis for the contemplated separation action under AR 635-200, paragraph 14-12c, for misconduct, commission of a serious offence, wrongful use of drugs.  He acknowledged his understanding of the rights available to him and the effect of any action taken by him in waiving his rights.  He acknowledged the effect of his discharge on further enlistment or reenlistment.  He did not provide a statement on his behalf.  He also acknowledged:

* he understood that he may encounter substantial prejudice in civilian life if a General (under honorable conditions) discharge was issued to him
* he understood that if he received a discharge certification/character of service which is less than honorable, he could make application to the Army Discharge Review Board or ABCMR for upgrading, and he understood that an act of consideration by either board did not imply that his discharge would be upgraded

	g.  On 14 July 1987, the applicant was recommended for separation by his immediate and intermediate commanders.

	h.  On 16 July 1987, the separating authority approved the applicant's discharge, under the provisions of AR 635-200, paragraph 14-12c for the commission of a serious offense.  He ordered the applicant be issued a General Discharge Certificate.

	i.  On 25 July 1987, the applicant was discharged under the provisions of 
AR 635-200, paragraph 14-12c, for commission of a serious offense.  His DD Form 214 shows he completed 3 years 7 months, and 26 days of active service with no lost time, and was given a general under honorable conditions character of service.  His 
DD Form 214 also shows he was awarded or authorized:

* Army Good Conduct Medal
* Army Service Ribbon
* Parachute Badge
* Sharpshooter Qualification Badge with Rifle Bar
* Marksman Qualification Badge with Grenade Bar


5.  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.

6.  By regulation, AR 635-200, in part states, Soldiers are subject to separation under the provisions of chapter 14, for the 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.  An under other than honorable is an appropriate and authorized character of service for this chapter.  However, the separation authority may direct a general under honorable conditions discharge if such is merited by the member's overall record.

7.  The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the pattern of misconduct which led to the separation and the applicant already receiving a General Discharge, the Board concluded that there was no error or injustice which would warrant making a change to the applicant’s characterization of service.

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.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

a. Paragraph 3-7a provides that an honorable discharge is given when the quality of 
the Soldier's service has generally met standards of acceptable conduct and duty performance.

b. Paragraph 3-7b provides that 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.  Paragraph 14-12c provides, Soldiers are subject to separation under the provisions of chapter 14, for the 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.  An under other than honorable is an appropriate and authorized character of service for this chapter.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.  

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.

   a.  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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.

	b.  Changes to the narrative reason for the 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.


ABCMR Record of Proceedings (cont)	 AR20180003580


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