IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20160011899 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20160011899 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. ____________x_____________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20160011899 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his discharge from general under honorable conditions to honorable. 2. The applicant provides no comments. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 21 November 1989 in the rank/grade of private (PVT)/E-1. 3. On 21 May 1990, he was promoted to the rank/grade of PVT/E-2. 4. His DA Form 4856 (General Counseling Form), dated 4 November 1991 shows he was counseled on 1 November 1991 for missing his first formation, a brigade run, and not being prepared for inspection. 5. On 2 December 1991, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 1 November 1991 while in the rank/grade of private first class (PFC)/E-3. His punishment consisted of a reduction in rank/grade to PVT/E-2, forfeiture of $197.00, 14 days of extra duty, and 14 days of restriction to the limits imposed by his commander. 6. His Standard Form 88 (Report of Medical Examination), dated 8 April 1992, shows he was found qualified for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. 7. His DA Form 4856, dated 24 June 1992, shows he was counseled for being absent from first call formation. This form shows this was his third offense and he had been counseled many times before about the same thing. He had been told to move back into the barracks, but he had taken it upon himself to live off post anyway. He was advised that this was his last time he would receive counseling for the offense. He was directed to move back into his old room and to report to the communications section no later than 0545 hours each morning. He was further advised he would receive an Article 15, UCMJ, and possible reduction in rank if he showed up with alcohol on his breath, missed formations would no longer be tolerated, and if he strayed from his set punishment in any way, he would receive the maximum punishment possible. 8. His Medical Department Activity Form 1986 (Statement of Findings – Alcohol and/or Narcotics Examination and Test), dated 24 June 1992, shows he provided a blood sample for an alcohol determination at the Womack Army Medical Center, which tested 0.061 for blood/alcohol content. 9. His DA Form 3822-R (Report of Mental Status Evaluation), dated 20 July 1992, shows he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, he met the diagnostic criteria for episodic alcohol abuse; however, this was not a medically boarded condition. He was psychiatrically cleared for any action deemed appropriate by his chain of command, to include Army Regulation 635-200, chapter 14, processing. 10. On 20 July 1992, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, while in the grade of E-4. a. The following violations were listed: * being drunk on duty on or about 24 June 1992 * dereliction of duty in that he willfully failed to keep his blood alcohol level below .05 percent while in Division Ready Force-9 status on or about 24 June 1992 * failing to go at the time prescribed to his appointed place of duty on or about 24 June 1992 b. His punishment consisted of reduction to the grade of E-1, forfeiture of $392.00 per month for 2 months, 45 days of extra duty, and restriction for 45 days to the limits imposed by his commander. 11. On 19 August 1992, he was notified by his commander of his intent to initiate separation action against him for the commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. His commander stated the reason for his proposed action was due to his receipt of an Article 15 for being drunk on duty and showing he could not be a productive member of the U.S. Army. His commander recommended a general under honorable conditions discharge. 12. On 19 August 1992, and after consulting with counsel, the applicant acknowledged he was not entitled to have his case heard before an administrative separation board, he elected not to submit statements in his own behalf, and acknowledged understanding he could encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued. 13. On 8 September 1992, the separation authority approved his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate. 14. On 23 September 1992, he was discharged accordingly. His DD Form 214 shows: a.  he completed 2 years, 10 months, and 3 days of active service, b.  he served in Southwest Asia during the period 21 August 1990 to 3 April 1991, and c.  he was awarded or authorized the: * Army Service Ribbon * National Defense Service Medal * (Marksman) Marksmanship Qualification Badge with Rifle Bar (M-16) * Parachutist Badge * Southwest Asia Service Medal with two bronze service stars * Kuwait Liberation Medal-Saudi Arabia 15. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  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.  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. c.  Chapter 14 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, and convictions by civil authorities. 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 appropriate for a Soldier discharged under this chapter. 2. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. DISCUSSION: 1. An 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. 2. The applicant was discharged for the commission of a serious offense. He was counseled on multiple occasions and he had two instances of nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty, being drunk on duty, and dereliction of duty in that he willfully failed to keep his blood alcohol level below .05 percent while in Division Ready Force-9 status. 3. There is no evidence of record and he provided no evidence showing he was not properly and equitably discharged in accordance with the regulations in effect at the time. 4. The applicant provided no additional evidence; however, the Board should consider all the facts in the case when determining whether to grant relief based on equity, injustice, or clemency grounds in accordance with the Under Secretary of Defense for Personnel and Readiness guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011899 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011899 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2