IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20200000102 APPLICANT REQUESTS: The applicant requests to upgrade his general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Onesimus Bible Correspondence College Associate of Biblical Studies * Onesimus Bible Correspondence Transcript of Academic Record * Shalom Bible College and Seminary Transcript of Record * Shalom Bible College and Seminary Master of Christian Education * Training certificates * Certificates of Achievement * Certificates of Completion * Christian 12 Step Ministry letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. He is writing the Board in hopes of ultimately utilizing the G.I. Bill to better his life by furthering his education. Never before has he felt so ready for positive change. He has a strong desire to attend college and has no doubt that he will succeed. He has no excuse for not filing in a timely manner. He has spent the last 27 plus years homeless, addicted to crack cocaine, and in and out of prison. He is 47 years old and he is tired. b. Before being released to the Transition House on 5 September 2019, he spent the last seven years in prison and while he was there he took it upon himself to attend Biblical studies, college courses, and vocational classes. Furthermore, he attended drug and alcohol courses to address his drug addiction. Please see a copy of his certifications attached. c. For the first time in his life, he has goals and plans that do not include drugs and alcohol. He wants to start living life on life's terms. His goal is to go to school for welding or drug and alcohol counseling and he feels that he is now ready to do so. d. Overall, he is no longer going to let his past define who he is today. He is proud of the confident, dedicated, and productive member of society that he has become. He knows that furthering his education is the right step that he needs to take in order to get to where he deserves to be in life. Therefore, he is respectfully requesting that his discharge be upgraded to Honorable in order to qualify for the G.I. Bill. He appreciates the Board’s time and consideration. 3. On 27 November 1990, the applicant enlisted in the Regular Army for a period of 6 years. 4. His service record contains documents that show on: * 22 December 1993, he was counseled for misconduct and assaulting his wife * 5 January 1994, he was read his rights for violating a written order * 9 January 1994, he was detained by civil authorities for simple battery * 11 January 1994, he was released back to his unit * 14 January 1994, he was absent from physical training and counseled * 22 February 1994, he was convicted by civil court for simple battery * 4 March 1994, he violated a written order, by going home after being released from jail * 7 March 1994, he was counseled in regards to receiving proposed non- judicial punishment (NJP) under the provisions of Article 15 (company grade) of the Uniform Code of Military Justice (UCMJ) for not being at his appointed place of duty * 8 March 1994, he was placed on restriction to the unit area, place of worship, and place of duty until his Article 15 was complete 5. On 11 March 1994, the applicant received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty on multiple occasions. He elected not to appeal. 6. On 11 and 16 March 1994, a medical examination and a Report of Mental Status Evaluation medically cleared the applicant for administrative separation action deemed appropriate by his chain of command. 7. On 14 April 1994, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. The specific reasons cited for the proposed action was the applicant’s failure to be at his appointed places of duty, breaking restriction, violation of a written order, simple battery, and conviction by a Civilian Court for simple battery. The commander also informed him of his rights and recommended the issuance of a general, under honorable conditions discharge. a. The applicant was advised by his consulting counsel of the basis for the contemplated action to separate him; its effects and the rights available to him. He elected not to submit statements in his own behalf. b. His chain of command recommended approval of the separation action. c. The Consolidated Legal Center, Office of the Staff Judge Advocate reviewed the elimination packet and found the packet to be legally sufficient. d. The separation authority approved the applicant’s discharge and directed his service be characterized as general, under honorable conditions. 8. On 11 May 1994, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct. His character of service was listed as under honorable conditions (general). He completed 3 years, 5 months, and 13 days of net active service and had lost time during this period from 9 to 10 January 1994. The applicant was awarded or authorized the: * Army Service Ribbon * National Defense Service Medal * Overseas Service Ribbon * Marksman Qualification Badge with Rifle Bar 9. In support of his case, the applicant provided Onesimus Bible Correspondence College Associate of Biblical Studies, Transcript of Academic Record, Shalom Bible College and Seminary Transcript of Record, Shalom Bible College and Seminary Master of Christian Education, training certificates, Certificates of Achievement Certificates of completion, and a Christian 12 Step Ministry letter. The documents were provided to the Board. 10. Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 11. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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: 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 to include a civil conviction, the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s multiple instances of misconduct; the applicant provided post-service certificates and education documents, but no other evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found the evidence provided insufficient to support clemency. 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 Army Board for Correction of Military Records (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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. b. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. a. 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. b. 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) AR20200000102 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000102 6 ABCMR Record of Proceedings (cont) AR20200000102 5