ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 July 2019

	DOCKET NUMBER:  AR20180012345


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

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 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 he would like to be able to use the veteran affairs services.

3.  He provides his DD Form 214 which shows his service from 6 February 1996 to 
12 November 1996.  

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

	a.  He enlisted in the Regular Army on 6 February 1996.  He was assigned Company Alpha, 2nd Battalion, 72nd Army, 1st Brigade, 2nd Infantry Division, Korea.

	b.  He received ten counseling’s for various offenses to include military bearing, safety, delegation of authority, appearance, absent without leave, accountability, controlled substances, failure to be at appointed place of duty, failure to obey a lawful order and attempted assault. 

	c.  He accepted nonjudicial punishment on 19 August 1996 for disobeying a lawful order to stay away from all tattoo parlors.  His punishment in part, reduction to Private/E-1.  
	d.  He underwent a mental evaluation on 16 September 1996 and examiner stated that the diagnostic impressions within the meaning of AR 635-200 (Personnel Separation – Enlisted Separation) and the diagnostic and statistical manual are as follows adjustment disorder with disturbance of conduct, polysubstance abuse in remission and antisocial personality disorder.  There was no condition which warrants separation through medical channels.  The problems presented by this individual were not, in the opinion of this examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate this individual into a satisfactory member of the military will be successful.  He was cleared for administrative separation deemed appropriate by command.

	e.  He underwent a medical exam on 25 September 1996 and the examiner qualified him for separation.    

	f.  On 8 October 1996, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of AR 635-200, Chapter 14-12b, for disobeying a commissioned officer and violated a lawful general regulation, which resulted in receiving an Article 15 on 19 August 1996.  He was also disrespectful towards and disobeyed several noncommissioned officers and failed to report to his appointed place of duty resulting in numerous negative counselings.  He recommended a general conditions discharge.  He acknowledge receipt of the notification.  

	g.  On 10 October 1996, he consulted with legal counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, Chapter 14.  
He acknowledged:

* the rights available to him and the effect of waiving said rights 
* the right to have his case heard by an administrative separation board
* the right to submit a statement in his own behalf; he elected not to submit a statement 
* he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued
* he would be ineligible to apply for enlistment in the Army for a period of two years after discharge

	h.  On 11 October 1996, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-200, paragraph 14-12b for patterns of misconduct for disobeying lawful orders, being disrespectful, and failed to be at appointed place of duty.  He recommended a general under honorable conditions discharge.  

	i.  Consistent with the chain of command recommendations on 21 October 1996 the separation authority approved the request for discharge under the provisions of 
AR 635-200, paragraph 14-12b for acts or patterns of misconduct and directed he be issued a general discharge certificate.

	j.  The applicant was discharged from active duty on 12 December 1996 under the provisions of AR 635-200, paragraph 14-12b for misconduct, SPD JKA –a pattern of misconduct consisting of discreditable incidents - civilian or military.  His DD Form 214 shows his characterization is under honorable conditions, general.  He completed 
9 months, and 7 days of active service this period.  He had no lost time.  It also shows that the applicant was awarded or authorized:  

* National Defense Service Medal
* Army Service Ribbon
* Sharpshooter Marksmanship Badge (Grenade)
* Marksman Marksmanship Badge (Pistol 9MM)

5.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

6.  By regulation 635-200, paragraph 3-7b 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.  Paragraph 14-3 states that an under other than honorable conditions certificate is normally appropriate for a member discharged under this chapter.  

7.  By regulation 635-5-1 (Personnel Separations-Separation Program Designators), members are subject to, separation code JKA is appropriate when the narrative reason for discharge is separation for a pattern of misconduct consisting of discreditable incidents - civilian or military.  

8.  The Board can consider the applicants 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.  He was discharged after a pattern of misconduct within a very short term of service and was provided an Under Honorable Conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.
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 (Personnel Separations-Enlisted Personnel) in effect at the time, provided 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.  Chapter 14 -12b states Soldiers are subject to separation when a pattern of misconduct consisting of discreditable involvement with civil or military authorities, conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

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)	 AR20180012345


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