ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170000249 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forced 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, he made mistakes when enlisted, but since his discharge he has maintained a productive life as well as being positive for his family. 3. A review of the applicant’s service record shows: a. His DD Form 4 (Enlistment/Reenlistment Document) reflects that he enlisted on 22 January 1987, into the Regular Army. b. On 25 September 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of theft. His punishment consisted, in part, of reduction to E-3. c. On 28 September 1989, the company commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against the applicant citing his offense of theft. d. On 6 November 1989, the applicant accepted NJP under the provisions of Article 15 for one specification of absenting himself from the unit to avoid a field exercise. His punishment consisted, in part, of reduction to E-1. a. e. On 15 December 1989, the applicant's company commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct prejudicial to the good order and discipline found in the time honored customs and traditions of the Army. On 25 September 1989, he received a Field Grade Article 15 for stealing property of about $260.00 from the Post Exchange on Fort Wainwright, AK; and on 6 November 1989, he received a Field Grade Article 15 for absenting himself from his unit for two (2) days with the intent to avoid field maneuvers. The immediate commander recommended a general discharge. f. The applicant consulted with legal counsel on 21 December 1989 and subsequently acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12b. He acknowledged he may expect to encounter substantial prejudice in civilian life because of a general under honorable conditions discharge. g. Subsequent to the applicant's acknowledgement, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, pattern of misconduct. h. On 26 December 1989, the applicant submitted a request for reconsideration and asked the separation authority to grant him an honorable discharge. He acknowledged that he made mistakes but pointed out that his performance had improved. The separation authority disapproved the waiver. i. On 26 December 1989, following a legal review for legal sufficiency, the separation authority approved the request for discharge for patterns of misconduct and ordered his service be characterized as an under honorable conditions (general). j. The applicant was discharged on 9 January 1990. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty under the provisions of AR 635-200, Chapter 14-12b with a general under honorable conditions characterization of service. He completed 2 years, 11 months, and 18 days of active duty service. He was awarded or authorized the Army Service Ribbon. 4. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that reliefwas not warranted. Based upon a pattern of misconduct which led to the discharge, the lack of character evidence to show that the applicant has learned and grown from the events leading to the discharge, as well as the applicant already receiving a general discharge, the Board concluded that the characterization of service received at the time of discharge 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) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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. b. 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. c. 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. 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, 1. 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.