IN THE CASE OF: BOARD DATE: 18 January 2019 DOCKET NUMBER: AR20160016804 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 18 January 2019 DOCKET NUMBER: AR20160016804 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, reconsideration of his previous request for an upgrade of his general discharge under honorable conditions to honorable. 2. The applicant states: * he only had 2 months to go before he was discharged on his original expiration of term of service * he has been unable to obtain employment due to his type of discharge resulting in being homeless due to the lack of financial stability * his military records will reveal the acts that resulted in his discharge were not criminal, only the nature of delinquency due to his age * he has no criminal record, but his discharge places him in the same category as a criminal THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with supporting document(s): no additional evidence. 2. The following evidence from the applicant's service records and Department of the Army and Department of Defense records and systems: * Orders 127-13, 507th Personnel Service Company, dated 13 October 1992 * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Associate in Science Degree Certificate * Letter, Army Discharge Review Board, dated 6 July 1998 * Bachelor of Arts Degree Certificate * Letter, Army Board of Correction for Military Records, dated 19 March 2012. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed the policies and procedures pertaining to the separation of active duty 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 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 4. 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110017210 on 15 March 2012. 2. He enlisted in the Regular Army in the rank/grade of private/E-1 on 12 July 1989. 3. He was advanced in rank/grade to: * private/E-2 on 1 January 1990 * private first class/E-3 on 12 July 1990 * specialist/E-4 on 1 April 1991 4. Item 27 (Remarks) of his DA Form 2-1 contains the entry "NFC [not favorably considered] for award AGCM [Army Good Conduct Medal] 920712 [12 July 1992]. AR [Army Regulation] 600-37 [Unfavorable Information] complied with." 5. On 13 October 1992, he was awarded the Army Good Conduct Medal for the period 12 July 1989 to 11 July 1992. 6. His records do not contain the specific facts and circumstances surrounding his separation processing. His discharge packet is not available for review. 7. His DD Form 214 shows he was discharged on 6 May 1993 by reason of pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b. He completed 3 years, 9 months, and 25 days of active service during this period. His rank/grade is shown as private/E-1 with an effective date of 3 March 1993. His service was characterized as under honorable conditions (general). 8. He was granted an Associate in Science Degree on 24 May 1996. 9. On 6 July 1998, the Army Discharge Review Board denied his request for an upgrade of his discharge. The board, being convinced that the reason for discharge and the characterization of service were proper and equitable, voted to deny relief. 10. He was granted a Bachelor of Arts Degree on 1 June 2001. 11. On 15 March 2012, the ABCMR denied his request for an upgrade of his discharge. The board carefully considered his service and awards and decorations; however, his separation processing was presumed to be administratively correct and in conformance with applicable regulations in the absence of evidence to the contrary. Without the discharge packet to consider, it was presumed his characterization of service was commensurate with his overall record of service. 12. The Board should consider his statement in determining whether to grant relief on the basis of equity, injustice, or clemency grounds in accordance with the Under Secretary of Defense for Personnel and Readiness guidance. 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 to amend the decision of the ABCMR set forth in Docket Number AR20110017210, dated 15 March 2012. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016804 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2