ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 October 2019

	DOCKET NUMBER:  AR20180008627


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* 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, in effect, he is a Gulf War Dessert Storm Veteran that would like an upgrade to his discharge.

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

   a. He enlisted in the Regular Army on 30 March 1989.

   b. On 6 March 1992, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (2), misconduct - abuse of illegal drugs.

   c. The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He elected not to submit a statement in his own behalf.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded  

   d. On 23 March 1992, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12c (2), with his service characterized as under other than honorable conditions.  

   e. The applicant was discharged accordingly on 17 April 1992.  His DD Form 214 confirms he was discharged under the provisions of AR 635-200, paragraph 14-12c, misconduct, with a characterization of service of general under honorable conditions.  He completed 3 years and 18 days of net active service. 

4.  On 21 August 1997, the Army Discharge Review Board determined the discharge was both proper and equitable and denied his request. 

5.  AR 635-200 prescribes, action will be taken to separate a member for misconduct such as commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

6.  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 relief was not warranted.  Based upon the misconduct which led to the applicant’s separation involving illegal drug use and the applicant already receiving an Under Honorable Conditions (General) characterization of service discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s service record.  


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 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a (Honorable) provides that 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) a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty (AD).

	c.  Chapter 14 of this regulation establishes policy and prescribes procedures for the separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record).

	d.  Paragraph 14-12c of this regulation prescribes that members are subject to separation per this section 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 court-martials.

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)	 AR20180008627


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