ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180013831


APPLICANT REQUESTS:  upgrade his general discharge under honorable conditions to honorable.

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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  However, the Army Board for Correction of Military Records (ABCMR) 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 accepts full ownership of his actions; he has changed his ways and habits.  He now has a child who is thinking about entering the Army; the applicant wants to be the best role model for him.

3.  The applicant's service records show:

	a.  He enlisted into the Regular Army on 5 January 1993 for a 3-year term.  After completing initial training, orders assigned him to Hawaii; he arrived on 20 September 1993.  

	b.  He deployed to Haiti on 12 January 1995; while deployed, his chain of command promoted him to specialist/E-4, effective 7 March 1995.  He redeployed to Hawaii on 2 April 1995.  On 28 June 1995, he immediately reenlisted for 3 years.  Orders transferred him to Fort Bragg, NC; he arrived on 11 April 1996.

	c.  On 4 February 1997, consistent with his plea, a summary court-martial found him guilty and convicted him of wrongful use of a controlled substance.  The court sentenced him to confinement for 30 days, forfeiture of $600 per month for 1 month, and reduction to private/E-1.  That same date, the summary court-martial convening authority approved the sentence and ordered its execution.  The applicant was confined from 3 until 28 February 1997.

	c.  On 21 April 1997, his commander notified the applicant of his intent to separate him under the provisions of paragraph 14-12c (Acts or Patterns of Misconduct – Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  His basis for this action was the applicant's summary court-martial conviction for wrongful use of a controlled substance.  Also on 21 April 1997, the applicant acknowledged his commander's notification and indicated, while he had been afforded the opportunity to consult with counsel, he elected not to do so.  The applicant's record does not show if he submitted a statement in his own behalf.

	d.  On or about 22 April 1997, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions.

	e.  On 14 May 1997, the applicant's commander signed two DA Forms 
4187-E (Personnel Action) in which he showed the applicant's duty status had changed from present for duty (PDY) to absent without leave (AWOL), effective 11 January 1994; and from AWOL to PDY, effective 13 January 1994 (the record does not includes any other supporting documentation).

	f.  On 15 May 1997, the applicant was separated with a general discharge under honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he served 4 years, 3 months, and 12 days of net active creditable service, of which 1 year, 10 months, and 18 days were during his second enlistment.  In addition, the DD Form 214 indicated he had lost time from 11 to 13 January 1994, and from 3 to 28 February 1997.  He also had continuous honorable service from 5 January 1993 until 27 June 1995.  He was awarded or authorized:

* Army Achievement Medal (2nd Award)
* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Parachutist Badge
* Air Assault Badge
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  The applicant accepts responsibility for his misconduct; he affirms he has turned his life around and seeks to be a good role model for his child.  Per AR 635-200, commanders were to separate Soldiers who committed a serious offense for which the Uniform Code of Military Justice (UCMJ) showed a punitive discharge (i.e. bad conduct or dishonorable) as a punishment; additionally, they were required to separate all Soldiers with 3 or more years of service upon discovery of a drug offense.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the misconduct, the applicant already receiving a general discharge, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to the discharge, the Board concluded that there was insufficient evidence to show an error or injustice which would warrant changing the characterization of service.

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 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  

2.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a stated an honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate.  Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor.

	b.  Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge.  The regulation considered the abuse of illegal drugs as serious misconduct.  Commanders could separate first-time offenders in grades E1 through E4 as appropriate; all Soldiers with 3 or more years of service were required to be processed for separation upon discovery of a drug offense.  

3.  The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included both the dishonorable and bad conduct discharge as punishments.

4.  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 on the basis of 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)	 AR20180013831


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