ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180012499


APPLICANT REQUESTS:  reconsideration of previous request to upgrade 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 214 (Certificate of Release or Discharge from Active Duty)

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 AR20110009937 on 1 November 2011.

2.  The applicant states he was falsely blamed for stealing government property and selling it to the Koreans during Team Spirit week.  He had taken over for another Soldier that was sleeping on his watch for duties of charge of quarters (CQ) and the items were stolen at that time.  However, he was blamed for the incident and was only given the opportunity to get out on an Article 15 or face a court-martial.  He was 18 years old and very young and naïve as to believing he would be sent to prison for something he did not commit at that time.  He was told he was guilty in the military before he could prove his innocence.  He did not know or was not given the option for legal advice from the Judge Advocate General office to assist with this situation.  He was young, scared and naïve to what would happen to him for a crime.  This is affecting him getting veteran resources and jobs.  He is currently homeless and needs immediate assistance.

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

	a.  He enlisted in the Regular Army on 2 June 1987.

	b.  He served in Hawaii for the period of 18 September 1987 to 22 June 1988.

	

c.  He received nonjudicial punishment for several infractions on/for:

* 13 November 1987, consuming an alcoholic beverage under the age of 21 years old
* 7 November 1987, stealing a Gerber Legendary Blade LST, one Swiss Army knife and sheath, one Buck knife Lancer, one Buck knife Colt, one Schrade Cutlery Old Timer, and one EZE Lad Diamond knife sharpener of a value of about $119.75; his punishment consisted of forfeiture $329.00 pay per month for 2 months the second month was suspended
* 31 March 1988, losing his binoculars and protective mask of some value, military property of the United States
* 26 and 31 March 1988, sleeping upon his post as sentinel; his punishment consisted of reduction to private/E-1 and forfeiture of $156.00 pay

	d.  On 2 June 1988, his immediate commander notified the applicant of his intent to initiate separation under the provisions of Chapter 14, Paragraph 14-12(c), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for commission of a serious offense.  He previously received 2 Field Grade Article 15’s and 1 Company Grade Article 15 he had an established pattern of misconduct.  The applicant acknowledged receipt of the commander's intent to separate him.

	e.  On 6 June 1988, 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 may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* 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
* he did not submit statement on his behalf, however he did request to be considered a rehabilitative transfer in his case in accordance with AR 635-200 paragraph 1-18

	f.  On the same date, his immediate commander recommended approval of the separation with a general, under honorable conditions discharge.  Additionally, on 7 June 1988, his chain of command recommended approval of the separation with a general, under honorable conditions discharge.

	g.  On 13 June 1988, the separation authority approved the applicant’s discharge under the provisions of paragraph 14-12c, AR 635-200 with the characterization of a general, under honorable conditions discharge.

	h.  On 23 June 1988, the applicant was discharged, with a general, under honorable conditions characterization of service.  His DD Form 214 shows he was discharged under the provisions of chapter 14 of AR 635-200 with an under honorable conditions (general) characterization of service.  He completed 1 year, and 22 days of active service and he was awarded or authorized Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

	i.  There is no evidence the applicant has applied to the ADRB for review of his discharge within that board's 15-year statute of limitations.

	j.  The applicant petitioned to the ABCMR seeking a discharge upgrade.  The ABCMR, after considering his case on 1 November 2011 denied his request.

4.  By regulation, AR 635-200 chapter 14 prescribes for the separation of enlisted members for misconduct.  Soldiers are subject to separation 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 Courts-Martial.

5.  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 relief was not warranted.  Based upon the short term of honorable service completed prior to a pattern of misconduct, some misconduct being of a criminal nature, as well as the applicant already receiving an Under Honorable Conditions (General) discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s discharge characterization.


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.  AR 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 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 of that regulation prescribes for the separation of enlisted members for misconduct.  It states, in pertinent part, Soldiers are subject to separation 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 Courts-Martial.

2.  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)	 AR20180012499


4


1