ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20180011161


APPLICANT REQUESTS: in effect, reconsideration of his earlier request to upgrade his discharge from general to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160000768 on 11 May 2017.

2.  The applicant states that he would like his general discharge upgraded to honorable with the re-instatement of the rank/pay grade of staff sergeant (SSG)/E-6.  He would like his military records and Identification Card to show the pay grade of SSG/E-6.  He is currently in disabled status.  He was not advised of his rights for legal representation nor was he told of his right to appeal.  He was not judged by a staff of his peers.  He was discriminated against and wrongfully discharged without cause.  

3.  A review of his service record shows:

	a.  He enlisted in the Regular Army (RA) on 24 January 1979.

	b.  He was stationed in Germany from 29 April 1984 to 16 June 1987.

	c.  On 21 June 1980, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 1 June 1982 to 2 June 1982.

	d.  On 9 April 1987, he was promoted to SSG/E-6.

	e.  On 14 January 1988, he received NJP for the wrongful use of marijuana.  His punishment consisted of reduction to sergeant (SGT)/E-5.

	f.  On 3 February 1988, the applicant's commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel), paragraph 14-12(c), for the commission of a serious offense, specifically citing the applicant's positive urinalysis result for THC on 21 December 1987.

	g.  On 11 February 1988, he was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights.  He requested to have his case considered by an administrative separation board, to personal appear before the board, and to be appointed a military counsel.  He elected not to submit statements in his own behalf and acknowledged that:

* he could expect to encounter substantial prejudice in civilian life if issued an under other than honorable conditions discharge
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of a discharge under other than honorable conditions

	h.  On 11 February 1988, a letter to the standing discharge Board was submitted from a sergeant major stating that he has never received any derogatory information concerning the applicant.  To the best of his knowledge, the applicant performed all of his duties in an excellent manner.  He spoke to the applicant after he received his NJP for marijuana.  Since then, his level of performance had not changed or deteriorated. 

	i.  On 12 February 1988, his immediate commander recommended him for separation under the provisions of AR 635-200, chapter 14-12(c) (commission of a serious offense).  On 24 February 1988, his intermediate commander recommended the applicant's case be referred to the standing discharge board.

	j.  On 29 February 1988, the separation authority approved the referral to the standing discharge board, concerning the separation of the applicant under the provisions of AR 635-200, chapter 14-12(c).

	k.  On 4 March 1998, the applicant requested a conditional waiver to appear before the separation board with a request for captain X__ as his military counsel. 

	l.  On 29 April 1988, an administrative board convened to determine whether or not the applicant should be retained in the service or discharged under the provisions of AR 635-200, chapter 14.  He and his military counsel appeared before the board.  The board carefully considered the evidence and found that a violation of AR 635-200, chapter 14, was committed; and that the applicant was not qualified for further military service.  The board recommended he be discharged from the Army and issued a general discharge.

	m.  On 17 May 1988, the office of the chief counsel found the board decision to be legally sufficient and recommended that the separation authority approve the findings and recommendations of the board.

	n.  On 23 May 1988, the applicant’s legal counsel submitted a rebuttal to the report of proceedings:

* he stated a member of the board was not personally selected by the appointing authority as required by AR 635-200 paragraph 1-21b
* he added that convening authority is authorized to convene the board IAW paragraph 1-21c, AR 635-200 but is not authorized to convene a chapter 14 separation board IAW paragraph 1-21c (2)(a) but may order separation or release from active duty when an other than honorable discharge is not warranted and the notification procedure is used, neither which is applicable to the applicants case
* he requested the board’s recommendation not be followed and direct the applicants retention on active duty IA AR 635-200, paragraph 2-6a(1)(c)
* he requested suspension of discharge certificate for 6 months to allow the applicant to further opportunity to demonstrate rehabilitative potential
* he offered that if the applicant should be separated prior to end of his enlistment, the applicant will waive all procedural defects in exchange for an honorable discharge

	o.  On 26 May 1988, consistent with the administrative board's recommendations, the separation authority approved separation of the applicant under the provisions of AR 635-200, chapter 14 for misconduct with a general discharge.  Request for conditional waiver was disapproved.

	p.  On 13 June 1988, the applicant was discharged from active duty under the provisions of AR 635-200, chapter 14.  His DD Form 214 shows he was discharged for the narrative reason of misconduct-commission of a serious offense.  His rank (Block 4a) reflects Sergeant/E-5, his pay grade (Block 4b) shows E-5, and his effective date of 19 January 1988.  It shows he completed 9 years, 3 months and 17 days of active duty service with 7 days of lost time.  It also shows he was awarded or authorized:

* Army Commendation Medal
* Army Good Conduct Medal (2nd Award)
* Army Achievement Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Noncommissioned Officer Professional Development Ribbon
* Driver and Mechanics Badge
* Expert-Marksmanship Qualification Badge (M16)

4.  By regulation, AR 635-200, Chapter 14 states that procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.

5.  By regulation (AR 635-5), blocks 4a and 4b of the DD Form 214 reflect a Soldier's rank/grade at the time of separation.  It is noted that the applicant was not reduced due to his separation; he was reduced by the NJP on 14 January 1988.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the type of misconduct and a lack of character evidence to show that the applicant has learned and grown from the misconduct which led to his discharge, the Board concluded that the characterization of service received at the time of separation was appropriate.

However, the Board did note 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 24 January 1979 until 25 March 1987.”
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.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	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 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 Discharge) states 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.

	c.  Chapter 14 -12(c)(1) (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission in 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 separation. Absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.

2.  AR 600-8-19 (Enlisted Promotions and Reductions) Paragraph 6-14 states grade restoration may result from 

	a.  Setting aside, mitigation, or suspension of nonjudicial punishment.  Procedure and means of restoring grades and announcing these actions are set forth in AR 27–10.

	b.  Action under Article 58a(b) or 75 of the UCMJ. All rights,
privileges, and property deprived a Soldier who fulfilled a court–martial sentence will be restored when the reduction sentence, or other sentence resulting in reduction under Article 58a(a), UCMJ, is set aside or disapproved. 

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)	 AR20180011161
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