ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20180008584


APPLICANT REQUESTS:  an upgrade of his general under honorable conditions 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 he did not have a history or pattern of misconduct.  Recently, he resolved outstanding debts and believes they were a factor in his discharge.  He explains he was never informed of any criminal incidents and did not have the opportunity to correct his behavior.  He tried to be the best soldier as he successfully completed airborne and communications school and received a good conduct medal.

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

	a.  He enlisted in the Regular Army on 30 November 1984.

	b.  On 6 February 1987, he accepted nonjudicial punishment, UCMJ Article 15, for:

* willfully disobeying a lawful order of a noncommissioned officer by using the alert phone for personal phone calls
* with the intent to deceive, sign an official record, the duty officer’s log which was false

	c.  On 16 March 1988, he accepted nonjudicial punishment, UCMJ Article 15, for:

* failure to go at a prescribed time to an appointed place of duty
* with the intent to deceive, alter an official document, a military sick-call slip
* with the intent to deceive, alter an official document, medical record consultation sheet

	d.  On 6 April 1988, he accepted nonjudical punishment, UCMJ Article 15 for breaking restriction and leaving the barracks area.  The record of punishment imposed is unavailable for the Board to review.

	e.  On 9 May 1988, the applicant’s immediate commander advised him of his intent to initiate separation action against him in accordance with the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14b, in effect at the time, for patterns of misconduct for revoked check cashing privileges, a history of minor infractions with civil and military authorities and punishment under UCMJ Article 15 on three occasions.

	f.  Based on the available information in the applicant’s service records, on 
9 May 1988, the applicant acknowledged receipt of the commander’s intent to separate him.  However, there are no documents available to support he consulted with legal counsel or submitted statements on his own behalf.  

	g.  The immediate commander initiated separation action against him under the provisions of AR 635-200, chapter 14 due to patterns of misconduct and the chain of command approved the recommendation.

	h.  Consistent with the chain of command’s recommendation, the separation authority reviewed the separation action; waived further rehabilitation requirements and approved the applicant's discharge under the provisions of AR 635-200, chapter 14 and directed issuance of a General Discharge Certificate.

	i.  The applicant was discharged on 13 August 1988.  His DD Form 214 shows he was discharged for misconduct with a general, under honorable conditions characterization of service.  He completed 3 years, 6 months and 14 days of net active service.  Also, it shows he was awarded or authorized:

* Army Achievement Medal 
* Army Good Conduct Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar
* Parachute Badge

4.  The Board should 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 the pattern of misconduct which led to the applicant’s 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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel states, action will be taken to separate a solider due to discreditable conduct and conduct prejudicial to good order and discipline including conduct violating accepted standards of personal conduct found in the UCMJ.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under 
AR 635-200, Chapter 14-2b.


	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 soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any characterization would be clearly in appropriate.

	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 14-12b of this regulation provides procedures for separating personnel for misconduct due to discreditable conduct and conduct prejudicial to good order and discipline including conduct violating accepted standards of personal conduct found in the UCMJ.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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, BCMRs 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.

ABCMR Record of Proceedings (cont)	 AR20180008584


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