ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20160015025 APPLICANT REQUESTS: The applicant requests his general discharge under honorable conditions be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) 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 he was a good Soldier. He deployed to Bosnia and received numerous achievement medals to include the Army Good Conduct Medal, company and battalion coins. He was respected by his peers and those Soldiers who worked for him. As a sergeant he never had one incident occur. He respected his chain of command and followed orders. He received nonjudicial punishment (NJP) for having approximately six 9 millimeter rounds displayed on his computer monitor during a routine barracks check. He left them there so that he would remember to put them in the amnesty box. It was a complete lapse of judgement. He was going through a nasty divorce and was not himself. 3. Additionally, he states after his rank was taken he realized that he did not set a good example for his Soldiers. It has been 17 years and he is still disappointed about the decision he made. His son is now serving at Fort Dix, NJ, and he is proud of him. He believes his son will serve honorably and be an awesome Soldier. He wants his discharge upgraded so that he will be able to share that status with him. 4. He served honorably in the Regular Army (RA) from 11 September 1992 through 12 April 1995. On 13 April 1995, he reenlisted in the RA for military occupational specialty 45T (BFVS Turret Mechanic). The rank/grade of sergeant/E-5 was the highest rank he held. 5. He was assigned to Headquarters and Headquarters Company, 1st Battalion, 6th Infantry Regiment, Vilseck, Germany from 25 September 1995 until he returned to the continental United States and was assigned to Fort Carlson, CO, on approximately 16 October 1998. 6. A Noncommissioned Officer Evaluation Report, ending in 1997, shows while the applicant was assigned to Germany, he helped “prepare vehicles and Soldiers for Gunnery. CMTC. Deployment to Bosnia-Herzegovina and the Division Command Inspection.” 7. While assigned to Fort Carlson, the applicant accepted NJP on the following dates: * 24 March 1999, for failing to go to his appointed place of duty at the time prescribed on 25 February 1999; his punishment consisted of a forfeiture of pay * 21 April 1999, for violating a general regulation by possessing ammunition in in his room, on 9 April 1999; his punishment consisted of extra duty and a forfeiture of pay * 5 May 1999, for failure to go to his appointed place of duty at the prescribed time on approximately nine different occasions; his punishment consisted of reduction to the rank of specialist four/E-4 and extra duty 8. The applicant was counseled between June and August 1999, for: * missing physical training formation and work call, on 2 June 1999 * missing movement, on 11 June 1999 * separation processing, on 18 August 1999 9. On 3 August 1999, the applicant underwent a medical examination and he was found physically qualified for separation. 10. On 17 August 1999, he underwent a mental status evaluation and the examiner found he met the physical retention standards prescribed in Army Regulation (AR) 40-501 (Standards of Medical Fitness). The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings deemed appropriate by his chain of command. 11. On 14 September 1999, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b, AR 635-200 (Personnel Separations Enlisted Personnel) for pattern of misconduct. The commander cited the reasons for the separation action was the misconduct cited above. The commander advised the applicant of his rights. 12. After having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14, AR 635-200 for misconduct. He was also advised of his rights. He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service of not less than “general.” 13. Both the applicant’s unit and intermediate commander’s recommended that he be separated from the Army prior to the expiration of his term of service with a general discharge under honorable conditions. 14. On 28 September 1999, the appropriate authority approved the recommendation with the issuance of a General Discharge Certificate and stated that he would not be transferred to the Individual Ready Reserve. 15. Accordingly, on 15 October 1999, the applicant was discharged under the provisions of paragraph 14-12b, AR 635-200, due to misconduct with a general discharge under honorable conditions. He had completed 7 years, 1 month, and 15 days of net active service this period; this includes 3 years of foreign service. His DD Form 214 also shows in: a. 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Achievement Medal (4th Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, United Nations Medal, Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars, Driver and Mechanic Badge with Driver-M Bar, and Armed Forces Service Medal. b. 18 (Remarks) “//CONTINUOUS HONORABLE ACTIVE SERVICE: 19920911 – 19980110// IMMEDIATE REENLISTMENT THIS PERIOD 19920911 – 19950412, 19950413 – 1998010. 16. The applicant’s service record does not show any service dates for Bosnia, it does show while serving in Germany he supported vehicles and other Soldiers deploying to Bosnia. 17. His record shows he was separated due to receiving NJP on three occasions, counseling for various reasons to include missing movement. His last period of service was characterized as under honorable conditions (general). In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide letters of support or evidence of post-service achievements for the Board to consider. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X 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. 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 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. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 14 of the regulation dealt with separation for various types of misconduct. Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct. That included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 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. 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 based on 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. 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) AR20160015025 6 1