ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 May 2019

	DOCKET NUMBER:  AR20180014991


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* U.S. Army Recruiting Command (USAREC) Form 225 (Telephone or Verbal Conversation Record), dated 27 March 1998
* DD Form 214WS (DD Form 214 Worksheet), for the period ending 8 May 1998
* National Archives (NA) Form 13036 (Certification of Military Service), dated 
22 April 2011

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 it has been 20 years and he was informed that after six months his discharge would be upgraded.  He was taken out of college because they were on 24 hour recall.  The first sergeant didn’t allow it because he was the black sheep of the unit.  He rebelled and went back to school and they punished him with failure to appear and kicked him out of the service.  He was railroaded.

3.  The applicant enlisted in the Regular Army on or about 16 August 1995.

4.  The applicant was formally counseled by members of his chain of command on 
14 separate occasions between August 1997 and January 1998, for reason including but not limited to:  failure to repair, disrespecting a noncommissioned officer (NCO), failure to follow instructions, and positive urinalysis.

5.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses:

* on 10 October 1996, for failure to go at the time prescribed to his appointed place of duty and for willfully disobeying a lawful order, on or about 2 October 1996
* on 2 June 1997, for failure to go at the time prescribed to his appointed place of duty, on or about 25 March 1997
* on 15 January 1998, for wrongful use of cocaine, on or about 31 October and 3 November 1997

6.  The applicant's commander notified the applicant on 2 February 1998 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct – abuse of illegal drugs.  The commander cited the applicant's positive urinalysis for cocaine on two occasions, numerous failures to repair, disrespect to an NCO, and failure to follow instructions.

7.  The applicant's commander formally recommended his separation from service on 
2 February 1998, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct – abuse of illegal drugs.

8.  The applicant consulted with counsel on 12 February 1998.  He waived his right to consideration of his case by, and personal appearance before, a board of officers, and to submit statements in his own behalf, contingent upon him receiving an under honorable conditions (general) discharge.

9.  The applicant’s record indicates he was declared absent without leave (AWOL) on or about 24 February 1998 and was dropped from rolls on or about 24 March 1998.

10.  The separation authority approved the recommended discharge on 23 March 1998, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the applicant be issued a UOTHC discharge.  He further stated the applicant would be discharged in absentia.

11.  The applicant’s record is void of a DD Form 214 (Certificate of Release or Discharge from Active Duty); however, he provides a DD Form 214 worksheet and a National Archives Certification of Military Service, both of which indicate he was discharged on 8 May 1998 and his service was characterized as UOTHC.

12.  The Board should consider the applicant's overall record and the statement he provides in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

1.  The Board considered the applicant’s statement, the evidence contained in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board determined that the record contains a pattern of misconduct and that the applicant was discharged in absentia after departing AWOL following his waiving an appearance before a board of officers.  The Board did not find any mitigating factors for the misconduct that led to his separation either in the record or provided by the applicant.

2.  The Board found upon review of the evidence and that relief was not warranted.

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.

ADMINISTRATIVE NOTE(S):

Not Applicable


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 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 sets forth the basic authority for the separation of enlisted personnel.

	a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  

	a. 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, Boards 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.

	b. 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)	 AR20180014991


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