ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 February 2019

	DOCKET NUMBER:  AR20160015589


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  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 would like to have his character of service upgraded to honorable because it has been 17 years since his discharge and he did not deserve the separation his chain of command gave him; they discharged him because he got a driving while intoxicated charge in 1998.  His life has been driving trucks and he wants to become a part of the trucking industry; they cater to Veterans, but only hire those with honorable discharges.

3.  The applicant's records show:

	a.  On 9 February 1998, he completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States); the remarks section notes the recruiting battalion operations officer conducted an interview of the applicant during which he admitted to driving while intoxicated.  The operations officer strongly recommended accession.  Additionally, the applicant filled out a Standard Form 86 (Questionnaire for National Security Positions), in which he listed a conviction for drunk driving in November 1997.

	b.  On 18 February 1998, the recruiting battalion approved a moral disqualification waiver for the applicant.

	c.  He enlisted in the Regular Army on 23 March 1998; following initial training, he was assigned to Fort Carson, CO and arrived on 26 August 1998.

	d.  On 22 November 1998, the military police (MP) apprehended the applicant during a 100 percent identification card check; the MPs detected a strong odor was alcohol and breathalyzer results showed a blood/alcohol level of 0.199 percent BrAC (breathalyzer alcohol concentration; amount of alcohol per 210 liters of breath with 0.08 percent being considered legally impaired).  The MP report also noted a previous arrest on 13 November 1998 by the State police.

	e.  On 1 December 1998, the applicant's brigade combat team (BCT) commander issued the applicant a letter of reprimand for operating a vehicle while under the influence of alcohol.  The applicant did not submit matters in his own behalf.  On 22 February 1999, the division commander, a major general, approved the filing of the letter of reprimand in the applicant's official military personnel file.

	f.  On 30 July 1999, the applicant's commander informed him via memorandum of his intent to separate the applicant under the provisions of paragraphs 14-12b (A Pattern of Misconduct) and 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  The reasons for this proposed action were:

* 13 November 1998 – arrested by the State police for driving while intoxicated
* on or about 22 November 1998 – arrested for physically controlling a motor vehicle while impaired by 0.199 grams of alcohol; he disobeyed the BCT commander's order
* 2 and 4 December 1998 – disobeyed the order of a noncommissioned officer (NCO) to join a physical training formation
* between 2 December 1998 and 2 April 1999 – failed to be at his appointed place of duty on numerous occasions
* 2 April 1999 – lied to an NCO
* 8 April 1999 – drunk on duty

	g.  On 3 August 1999, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the contemplated separation action, and he understood its effects, the rights available to him, and the effect of waiving those rights.  He requested counsel and elected to waive his rights; he chose not to submit statement in his own behalf.  On 13 August 1999, the separation authority approved the commander's recommendation and directed the applicant's discharge under other than honorable conditions.  He was discharged accordingly on 17 August 1999.

4.  Under paragraph 14-12b, commanders were to consider Soldiers for separation when they exhibited a pattern of misconduct that was discreditable in nature and/or was prejudicial to good order and discipline.  Separation based on serious misconduct involved offenses where the Uniform Code of Military Justice (UCMJ) authorized a punitive discharge for the same or similar violation.  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:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The Board agreed the discharge characterization was warranted based upon 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.



REFERENCES:

1. Title 10, USC, 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 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.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations.

	a.  	Paragraph 3-7a (Honorable Discharge) stated commanders could award an honorable discharge when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance.

	b.  Paragraph 3-7b (General Discharge) provided a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense.  

		(1)  Paragraph 14-12b stated members were subject to separation under this provision when they had a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and/or conduct that were prejudicial to good order and discipline.

		(2)  Paragraph 14-12c stated the commission of a serious military or civilian offense could be a basis for separation when the specific circumstances of the offense warranted such separation, and the UCMJ authorized a punitive discharge for the same or similar offense.  (Per the UCMJ, the maximum punishment was dishonorable or bad conduct discharge for violation of Article 90 (Willfully disobeying the Lawful Order of a Superior Commissioned Officer); Article 91 (Willfully Disobeying an NCO) was bad conduct discharge; Article 111 (Drunken Driving) carried a bad conduct discharge for cases that did not result in personal injury). 

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.  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.


ABCMR Record of Proceedings (cont)	 AR20160015589


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