ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20160016307 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * his professional resume * Chemical Dependency Studies certificate * Master of Science degree certificate * Certificate of Achievement and Completion * Department of Veterans Affairs (VA) record of military service FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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 he was unjustly discharged for extending his vacation time to deal with his brother who was dying from AIDS. He was given an Article 15 for not following orders. He has since obtained a Master of Science in Clinical Psychology with an emphasis in marriage and family therapy. He has obtained additional training certificates and has provided clinical services for indigent people. 3. Following prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 7 March 1989. 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two occasions: * on 15 June 1989, for the theft of several items from a motel, on or about 20 May 1989 * on 23 May 1990, for being absent without leave (AWOL) from on or about 19 March 1990 through on or about 18 April 1990 5. The applicant underwent a mental status evaluation on 16 May 1990. The evaluating physician reported the applicant to be mentally responsible, meeting medical retention requirements, and possessing the mental capacity to understand and participate in any administrative proceeding. 6. The applicant's commander notified the applicant on 27 June 1990 that he was initiating separation actions against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. The applicant acknowledged receipt of the separation notification memorandum. 7. The applicant consulted with legal counsel on 29 June 1990. a. He was advised of the basis for the contemplated administrative discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. He waived his right to have his case heard by a board of officers, to appear personally before an administrative separation board. b. He further acknowledged he understood that if received an under less than honorable characterization of service, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He submitted a statement in his own behalf, wherein he noted that on many occasions, his chain of command ignored or denigrated him about his diet and religion. Each time he approached his chain of command, they responded in an unprofessional manner. His unit was authorized leave and he went home on 20 February 1990. Prior to his departure he inquired as to why he was not allowed to take the number of days he had requested and was told he was a special case. At home, his aunt has passed away and his brother was dying of AIDS and he was needed at home. He called his command on 20 March 1990 to inform them of the situation and was told that he had to return immediately as he was AWOL and he had a commitment to the Army that his family would have to understand. His family had not abandoned him when his mother died and he owed them everything. When he returned to his unit, he did not have a meal card and when he asked about reimbursement for his meals he was refused help. He requested to be chaptered out due to the stress caused by the negative environment. 8. The applicant's commander formally recommended, on 11 July 1990, the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b. The applicant's two NJPs and period of AWOL were cited. 9. The appropriate authority approved the applicant's request for discharge on 16 July 1990, under the provisions of Army Regulation 635-200, paragraph 14-12b, pattern of misconduct, and directed that the applicant receive a general discharge. 10. The applicant was discharged on 23 July 1990. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, and his service characterization was under honorable conditions (general). His DD Form 214 shows he was discharged in the rank/grade of private/E-1. 11. The applicant provided copies of post service educational accomplishments including his Master of Science degree in counseling. He also provided a resume outlining his work history as an educator and clinician. 12. The Board may consider the applicant's post service educational accomplishments and stated reason for his AWOL for consideration in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. He contends he was unjustly discharged attempting to address concerns with his brother’s medical diagnosis. Evidence of record shows he had a pattern of misconduct and did not want to remain in the military. The Board agreed his initial discharge characterization of service was warranted as a result of the misconduct. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record, and agreed to upgrade his characterization of service to honorable. 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 him a DD Form 214 for the period ending 23 July 1990 showing his characterization of service as honorable. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 14-12b provides that a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter. 4. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016307 4 1