IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20200000063 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. 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), dated 12 August 2019, with self-authored statement * Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimants Representative), dated 12 August 2019 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 he was unlawfully discharged with forfeiture of rank and pay. He is legally blind, uses a walker and a cane, and does not drive. He is on numerous medications due to mental stress and depression caused by his military experience. He did not have one counseling or Article 15. He was an expert in all phases of duty and extended his service to complete a six year active duty tour. It was suggested by legal personnel that he accept a Chapter 13 discharge and request an upgrade once he got out. He was very disgruntled by the whole situation. He hopes to receive restoration of his rank and back pay, which was unlawfully taken from him. 3. The applicant enlisted in the Regular Army on 9 September 1980. He extended his enlistment on 1 March 1983 for an additional 22 months. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 20 April 1984, for assaulting his spouse, on or about 26 February 1984 and for striking and kicking his dependent son, on or about 28 February 1984 * on 5 February 1985, for willfully disobeying a lawful order, on or about 31 December 1984 and for disorderly conduct, on or about 31 December 1984 5. The applicant was counseled by members of his chain of command on 12 February and 21 February 1985, concerning his elimination from service and revocation of pass privileges. 6. An Army Europe (AE) Form 3087 (Report of Psychiatric Evaluation), dated 25 March 1985, indicates the examining official determined the applicant did not suffer from a psychiatric disorder that would qualify him for medical board processing. He was psychiatrically cleared for any administrative action deemed appropriate by command. 7. The applicant's immediate commander notified the applicant on 16 May 1985 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12, for misconduct. The specific reason cited was the applicant’s two Article 15s. 8. The applicant consulted with counsel on 16 May 1985 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He requested consideration of his case by an administrative separation board and personal appearance before the board. He elected not to provide statements in his own behalf. 9. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. 10. In a statement, dated 31 May 1985, the applicant requested reconsideration of his separation from service. He stated: * he had caused some problems but they were his family problems * he was not a displeasing Soldier, he did his job well * his treatment from the unit was not equal to others due to his interracial relationship * he had been humiliated, disgraced, and belittled by his chain of command * with his military record, he should not be flushed away for two Article 15s 11. The applicant’s available record is void of evidence he appeared before an administrative separation board. 12. The separation authority approved the recommended discharge on 4 June 1985 and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 13 June 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct. His service was characterized as under honorable conditions. 14. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, a psychiatric evaluation, the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct; the applicant provided no medical evidence of his current conditions. The Board found the applicant provided no evidence, in addition to his statement, of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 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 2-2, Section III provides that to be eligible for a hearing before a separation board, a Soldier will have six or more years of total active and reserve military service at the time of separation. b. 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. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000063 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000063 5 ABCMR Record of Proceedings (cont) AR20200000063 4