ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180004396


APPLICANT REQUESTS: 

* An upgrade of his general under honorable conditions discharge to honorable
* Personal appearance before the Board

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)
* DD Form 149 (Application for Correction of Military Record)

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 was discharged based on an article 15 proceeding that he believes at the time was false.  He followed orders from his sergeant and that was used to finalize his discharge.  At the time of his discharge, he just wanted to move forward. Now looking back, he would have stayed and appealed.

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

	a.  He enlisted in the Regular Army on 20 August 1985.  He also reenlisted on 28 September 1988.

	b.  On 20 July 1989, a memorandum for the applicant to his command for suspension of check cashing privileges due to dishonored checks:

* 21 May 1989 to Post Exchange (PX) in the amount of $38.88
* 23 May 1989 to PX in the amount of $23.05

	c.  On 6 October 1989, a memorandum for the applicant to his command for suspension of check cashing privileges due to dishonored checks 22 July 1989 to MTN (unknown acronym) Inn in the amount of $25.00.  His check cashing privileges were suspended for 6 months.  He acknowledged the offenses on 30 October 1989.

	d.  On 14 December 1989, a memorandum for the applicant to his command for suspension of check cashing privileges due to dishonored checks:

* 22 September 1989 to PX in the amount of $100.00
* 23 September 1989 to PX in the amount of $100.00

	e.  He accepted non-judicial punishment on/for: 19 June 1990, disrespect in language towards a noncommissioned officer by saying to him “I am tired of your shit” or words to that effect and failure to obey a lawful order.  He was reduced to private/E-2 (suspended)

	f.  DA Form 4126-R (Bar to Reenlistment Certificate) shows on 7 November 1990, he was barred from reenlistment for offenses above including 25 January 1989, wrongful possession of amphetamines and wrongful distribution of amphetamines, he was reduced to private/E-1.  The bar was approved on 29 November 1990.

	g.  He accepted non-judicial punishment on/for: 4 December 1990, wrongfully steal an olive drab canister containing chlorobenzylidene malononitrile also known as CS powder, of an unknown value, the property of the US government, his suspended rank reduction was vacated and reduced to private/E-2

	h.  On 8 February 1991, the command notified the applicant of separation under provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel) paragraph 13-2 for unsatisfactory performance and recommended a (general) discharge under honorable conditions.  The specific reasons shows as:

* wrongfully stolen property of the US government
* disrespectful and disobeyed noncommissioned officers
* written dishonored checks

	i.  On 8 February 1991, the applicant acknowledged receipt of proposed separation.  On 12 February 1991, he consulted with counsel and was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for (unsatisfactory duty performance) UP of chapter 13, AR 635-200, its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He 

* requested consideration of his case by an administrative separation Board
* requested personal appearance before an administrative Board
* submitted a statement on his own behalf
* understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him
* understood that, as the result of issuance of a discharge certificate under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws
* understood that if he receives a discharge certificate/character of service which is less than honorable, he applies to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that an act of consideration by either board does not imply that my discharge will be upgraded
* understood he could expect to encounter substantial prejudice in civilian life
* understood that he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge

	j.  On 19 February 1991, his immediate commander recommended separation for (unsatisfactory duty performance) UP of chapter 13, AR 635-200.  On 26 February 1991 trial counsel reviewed and concurred separation is legally sufficient.

	k.  On 12 March 1991, the separation authority approved separation UP of AR 635-200 chapter 13.  He ordered the applicant to receive a general discharge.

	l.  Accordingly, the applicant was discharged on 29 March 1991 UP of AR 635-200 chapter 13 for unsatisfactory performance with an under honorable conditions (general) character of service.  He completed 5 years, 7 months, and 10 days of active service he had continuous honorable service from 19850820 to 19880927.

4.  By regulation, AR 15-185 (ABCMR) applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

	a.  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) to 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).

	b.  AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

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 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 a pattern of misconduct, include some of a criminal nature, as well as the applicant already receiving a General Discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant  making a change to the characterization of service.

However, the Board noted that the applicant had a prior period of honorable service which was 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:  “Continuous honorable active service from 20 August 1985 until 27 September 1988.”
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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

3.  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) to 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).

4.  AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 (Separation for Unsatisfactory Performance) of the regulation in effect at the time states member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.

	a.  Paragraph 3-7a 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 13-2 states Commanders will separate a member for unsatisfactory performance when it is clearly established that:
		(1)  In the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

		(2)  The seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale.

		(3)  It is likely that the member will be a disruptive influence in present or future duty assignments.

		(4)  It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur.

		(5)  The ability of the member to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.

		(6) The member meets retention medical standards (AR 40-501).

5.  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.

ABCMR Record of Proceedings (cont)	 AR20180004396


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