ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20160019683 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge to honorable. 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). 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 is attempting to qualify for benefits with the upgrade to honorable. Also, he adds that he has paid into the Servicemember’s Group Life Insurance and would like to receive some of this benefit to better this quality of life. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 28 August 1997. b. On 31 March 1999, He accepted nonjudicial punishment under Article 15 for being absent without leave (AWOL) from 5 to 11 January 1999, and 29 January 1999 to 28 February 1999, and failure to report to an appointed place at a time prescribed. His punishment included a reduction to E-1. c. On 28 May 1999, he was convicted by a summary court-martial for one specification of disobeying a lawful order, and six specifications of failure to report to an appointed place of duty. The court sentenced him to confinement for 30 days. d. On 29 June 1999, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 a. (Personnel Separation – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense being AWOL on numerous occasions. e. On 7 July 1999, the applicant acknowledged receipt of the commander’s intent to separate him. Subsequently, on 7 July 1999, he consulted with legal counsel and waived his right to submit statements on his behalf. He was advised of he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. f. Subsequent to the applicant's acknowledgment, the immediate commander initiated separation action against the applicant for misconduct. The immediate commander stated the applicant was AWOL from 5 to 11 January 1999 and 29 January to 28 February 199. He was also confined from 17 May to 16 June 1999. The chain of command recommended approval. f. On 23 July 1999, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 14, AR 635-200, Chapter 14-12c by reason of misconduct, commission of serious offense on 13 July 1999. g. He was discharged from active duty on 3 August 1999. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was discharged under the provisions of paragraph 14-12c of AR 635-200, due to "misconduct" with an under honorable conditions (general) characterization of service. He completed 1 year, 11 months, and 6 days of active service. It also shows he was awarded or authorized: * Army Lapel Button * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar 4. By regulation, action will be taken to separate a soldier for misconduct, commission of a serious offense for an absentee returned to military control from a status of absent without leave. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14-2c. 5. 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 determination guidance. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the pattern of misconduct and a lack of characteri evidence submitted by the applicant to demonstrate that he has learned and grown from the events which led to the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 1535874 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the when the quality of the soldier’s service generally has not 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 (General Discharge) is a separation from the Army under honorable conditions. When authorized, it issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of 1. their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.