ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180010244


APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 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 on his DD Form 149 that a letter was attached, but his application is void of a letter.

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

	a.  He enlisted in the Regular Army on 1 October 1987.

	b.  On 11 August 1988, he accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to report to his appointed place of duty on 3 August 1988.

	c.  On 12 October 1988, he accepted NJP, under the provisions of Article 15, UCMJ, for wrongfully using marijuana from 20 August 1988 to 30 August 1988.  

	d.  On 25 October 1988, he received a counseling statement for being absent for formation.  He was informed by his noncommissioned officer that he was recommending that he be chaptered out of the Army due to his attitude and poor performance.

	e.  On 21 April 1989, he accepted NJP, under the provisions of Article 15, UCMJ, for departing his unit in an absent without leave (AWOL) status on 5 April 1989 and did not return to military control until 13 April 1989.  

	f.  On 28 April 1989, he accepted NJP, under the provisions of Article 15, UCMJ, for wrongfully using marijuana from 3 April 1989 to 13 April 1989.  

	g.  His record is void of his commander’s notification of the intended action to initiate separation action under the provisions of Army Regulation (AR) 635-200, Chapter 14, for serious misconduct (abuse of illegal drugs).  However, it does contain a decision paper signed by his chain of command, related to the recommended action for the following offenses:

* failing to go to his appointed place of duty
* AWOL
* use of marijuana

	h.  Consistent with the chain of command's recommendation, the separation authority approved his discharge under the provisions of AR 635-200, Chapter 14-12c, and directed the issuance of an under other than honorable conditions discharge.

	i.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 October 1989 under the provisions of AR 635-200, Chapter 14-12c, and given a characterization of under other than honorable conditions discharge.  It also shows he completed 2 years and 15 days of net active service with lost time from 5 April 1989 to 12 April 1989.  He was awarded or authorized the:

* Army Service Ribbon
* Sharpshooter Qualification Badge with Rifle Bar (M-16)
* Second Class Qualification Badge Hand Grenade
* Second Class Qualification Badge Tow Gunner

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for an upgrade of his discharge.
5.  By regulation, (AR 635-200), action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history.
6.  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 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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to a pattern of misconduct,  including multiple drug offenses, 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.

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 - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 3-7a (Honorable) provided that 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 other characterization would be clearly inappropriate. 

   b.  Paragraph 3-7b (General) 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty.

   c.  Paragraph 14 (Separation for Misconduct) of this regulation establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a .pattern ,oft misconduct, commission-of a serious offense, conviction by civil authorities,' desertion, and absence without-leave.  Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history.

	d. Paragraph 14-12c (Commission of a Serious Offense), says that 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 courts-martial (MCM).  

	e.  Paragraph 14-12c (2) states that abuse of illegal drugs is serious misconduct.  Separation action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions of incidents of other misconduct and processed for separation as appropriate.

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)	 AR20180010244


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