ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20160011743 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * a self-authored letter of character, dated 16 June 2016. FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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, in effect he is requesting an upgrade of discharge in order to obtain benefits. In addition, he believes he was misinformed throughout the separation process, and he had inadequate representation. He also provides a self-authored letter highlighting the following events prior to and after his discharge: a. During his time in the military, he had an alcohol and drug issue, and he did not receive the proper treatment to overcome the issue. He feels if he got incarcerated 2-3 times for drunken brawls at a bar, it should have been evident that he needed help. He believes his unit did not provide the necessary assistance in order for him to recover and become a better Soldier. b. He is fully aware of his responsibility and accountability for his actions. Since his discharge, he has become a patriotic citizen by acquiring the necessary treatment for his addiction. He is currently an Honor Student on the Dean’s List at American Baptist College, and he works with youth and young adults in leading them into successful lives, even encouraging them to enlist into the military as well as college. He a. states, “I am aware that my actions warranted the outcome of my discharge; however, I was young and did not realize the full effect of my future.” 3. The applicant’s record shows he entered the Regular Army on 18 October 1990. His DA Form 2-1 (Personnel Qualification Record - Part II) shows he was assigned to Charlie Company, 1-22nd Infantry Battalion, Fort Drum, NY. 4. His record is void of the specific facts and circumstances surrounding his discharge. After contacting the applicant via phone, he stated he accepted two non-judicial punishments, under the provisions of Article 15 of the Uniform Code of Military Justice, that were alcohol-related. One incident involved a fight with the military police. He was assigned legal counsel as the first client. Legal counsel did not take witnesses seriously and recommended the applicant do a voluntary discharge request in-lieu of trial by court martial since he may end up in military jail. He did not get the opportunity to use his leave. Overall he feels he was not adequately represented. 5. The applicant was discharged on 5 March 1993. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, and his service was characterized as UOTHC. He completed 2 years, 2 months, and 8 days of net active service. 6. The applicant further stated over the phone how he had a hard time functioning after the military due to alcohol and drugs. Eventually he became a recovering addict. He got his life back in order, coaches youth football, is a referee for youth basketball games, he is active in religious activities including young adult Sunday school, and he is training to be a deacon. He also owns a window cleaning business and is currently attending college for his Bachelor of Arts degree. 7. The applicant provides two character witness statements from March and April 2019: a. His pastor states how the applicant has been a church member for about 15 years. The applicant is described as a self-motivated, self-directed, self-determined, positive individual who accepts and handles new challenges well. He exemplifies good citizenship and character, works well with others, and has genuine interest and concern for others. He is called upon to complete various work assignments regarding general cleaning and church maintenance. b. Another letter is from one of his customers who hired him to clean their business windows, and he is praised for his outstanding work. They state how his character shows through his work and he does not leave until everything is perfect. The applicant has exceeded their expectations. a. 8. The Army Discharge Review Board reviewed the applicant's discharge on 28 April 1999 and determined it was both proper and equitable, and denied his request for an upgrade. He was further informed of this decision on 30 April 1999. 9. Per AR 15-185 (ABCMR), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 10. The Board should consider the applicant's petition, his service record, his self- authored letter highlighting his achievements after the military and character references in accordance with guidance from the Under Secretary of Defense for Personnel and Readiness (25 July 2018) to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice, or clemency determinations. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that they could make a fair and equitable decision without a personal appearance from the applicant. Additionally, the Board found that relief was warranted. Based upon the type of misconduct and the demonstrated growth of the applicant since the events which leading to the discharge, the Board concluded that granting clemency by upgrading the characterization of service of the applicant to Under Honorable Conditions (General) was appropriate. 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 showing his characterization of service as Under Honorable Conditions (General). 5/28/2019 X CHAIRPERSON Signed by: 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, U.S. Code, 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 Army Board for Correction of Military Records (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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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. 1. 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. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it provides that applicants do not have a right to a hearing before the ABCMR; the Director or the ABCMR may grant a formal hearing whenever justice requires.