ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 June 2019

	DOCKET NUMBER:  AR20190003288


APPLICANT REQUESTS:  upgrade of 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 his reason for requesting an upgraded character of service is 
because he was found not guilty in a trial.

3.  The applicant's service records show:

	a.  After obtaining his parent's written permission, he enlisted into the Regular Army 
on 31 July 1984 for a 4-year term; he was 17 years old.  Following completion of initial 
training, orders assigned him to the National Training Center (NTC), Fort Irwin, CA; he 
arrived on or about 7 January 1985.  Effective 1 August 1985, his chain of command 
promoted him to private first class (PFC)/E-3.

	b.  On three occasions, he accepted nonjudicial punishment under Article 15, 
Uniform Code of Military Justice:

*	1 October 1986 – failing to return to the physical training formation
*	16 October 1986 – two specifications of failing to go to his appointed place of 
duty at the time prescribed; punishment included a suspended reduction to 
private (PV2)/E-2; suspension vacated on 20 October 1986 due to applicant's 
failure to go to his appointed place of duty on 17 October 1986
*	12 December 1986 – disobeying an order from his first sergeant not to leave 
the company area before submitting a urine sample

	c.  On 18 February 1987, the applicant's commander advised him in writing of his 
intent to separate the applicant under the provisions of Army Regulation (AR) 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for 
Misconduct), paragraph 14-12b (A Pattern of Misconduct).  The commander's reasons 
were the applicant's previous misconduct addressed by his three NJP actions; the 
commander indicated he would recommend a general discharge under honorable 
conditions.

	d.  On 19 February 1987, after consulting with counsel, the applicant acknowledged 
counsel had advised him of the basis for this action, his available rights, and the effect 
of waiving those rights.  He elected not to make a statement in his own behalf.

	e.  In his recommendation to the separation authority, the applicant's commander 
wrote the applicant's performance was characterized by intentional behavior, which 
rendered him repeatedly subject to punitive action; this behavior was not due to any 
incapacity to become a satisfactory Soldier.

	f.  On 23 February 1987, the separation authority approved the commander's 
recommendation and directed the applicant's general discharge under honorable 
conditions; on 27 February 1987, he was discharged accordingly.  His DD Form 
214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 
6 months, and 27 days of his 4-year enlistment.  He was awarded or authorized the 
Army Service Ribbon and a marksmanship qualification badge.  

	g.  On 5 June 2012, the applicant petitioned the Army Discharge Review Board, 
requesting an upgraded character of service.  Under the section showing reasons for 
his request, the applicant wrote only the following:  "civil defence" (sic).  The Case 
Management Division, Army Review Boards Agency, administratively closed the 
applicant's request because it was submitted beyond the ADRB's 15-year statute of 
limitations.

	h.  The applicant's service record is void of any documentation showing the applicant 
underwent a trial (either by court-martial or a civil court).

4.  Regulatory guidance required commanders to separate Soldiers who displayed a 
pattern of misconduct, involving acts of discreditable involvement with civil or military 
authorities, and/or acted in a manner that was prejudicial to good order and discipline. 
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, the Board determined that there is 
sufficient evidence to grant relief.  The board applied Office of the Secretary of Defense 
standards of liberal consideration and clemency to the complete evidentiary record, 
including the applicant’s statement and found that the applicant’s punishment and 
characterization were too harsh for the circumstances as the applicant nearly completed 
his enlistment at age 20 after having joined the Army when he was 17 years old.  
Therefore, the Board found sufficient evidence to upgrade the discharge.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 for the period ending “87-02-27” showing his characterization of service 
as “Honorable.”


	  
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 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, prescribed policies and procedures for the 
administrative separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a 
separation with honor.  The honorable characterization was appropriate when the 
quality of the Soldier's service generally met the standards of acceptable conduct and 
duty performance.

	b.  Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to 
include for a pattern of misconduct and the commission of a serious offense.  Paragraph 
14-12b stated members were subject to separation under this provision when they 
showed a pattern of misconduct involving acts of discreditable involvement with civil or 
military authorities, and/or displayed conduct that was prejudicial to good order and 
discipline.

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 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.  //NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190003288

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