ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20160019436 APPLICANT REQUESTS: upgrade of his general (under honorable conditions) discharge (GD) 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 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 that he was discharged nearly 23 years ago and the misconduct was minor. He has gone on to become a productive person in society. 3. A review of applicant’s service record shows the following: a. He enlisted on 13 March 1991. He served as an Infantryman and was sent to Somalia from 27 December 1992 to 12 March 1993. b. From 21 July 1993 through 2 November 1993, he was counselled numerous times regarding unpaid debts, being late to formations, failing to report for various duties, and disobeying the orders of both commissioned and noncommissioned officers. c. On 8 November 1993, the applicant was notified of his commander’s intent to initiate separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12b for a pattern of misconduct and recommend he receive a GD. He subsequently consulted with defense counsel. d. On 9 November 1993, he received non-judicial punishment for violating an order from a commissioned officer and violating an order from a noncommissioned officer. Among other punishments, he was reduced to private/E-1. a. e. On 6 December 1993, applicant’s separation was approved by the acting brigade commander. f. He was discharged on 12 December 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he was discharged under the provisions of chapter 14 of AR 635-200 with an under honorable characterization of service. His DD Form 214 further shows: * he completed 2 years, 4 months, and 5 days with no lost time * he was awarded or authorized the Army Service Ribbon, the National Defense Service Medal, the Army Achievement Medal, the Armed Forces Expeditionary Medal, the Joint Meritorious Unit Award, the Expert Badge (Rifle), the Sharpshooter Badge (Hand Grenade), and the Sharpshooter Badge (Dragon Gunnery). g. On 13 February 2000, applicant submitted a DD Form 293 (Application for the Review of Discharge from the Armed Forces) to the Army Discharge Review Board (ADRB). The ADRB found applicant’s discharge both proper and equitable and denied his request for an upgrade. 4. By regulation, misconduct includes minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon a pattern of misconduct which led to discharge, the Board concluded that the characterization of service received at the time of discharage was appropriate. 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. 5/23/2019 X CHAIRPERSON Signed by: 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 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraphs 3-5a through f, generally state that characterization will be based on the quality of a soldier’s service, including the reasons for separation and guidance in paragraph 3-7. Characterization may be based on conduct in the civilian community. Characterization will be based upon a pattern of behavior, but there are circumstances in which a single incident provides the basis for characterization. Due consideration will be given to the soldier’s age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty. The type of discharge and character of service are of great significance to the soldier. They must accurately reflect the nature of service performed. b. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. c. Paragraph 3-7b (General Discharge) states 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. d. Paragraph 14-12b states soldiers are subject to separation for patterns of misconduct consisting of (1) discreditable involvement with civil or military authorities and/or (2) conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. a. 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 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. 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.