ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20170000560 APPLICANT REQUESTS: His general discharge be upgraded to an honorable discharge. 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. A review of the applicant’s service record shows: a. He enlisted in Regular Army on 16 April 1992. b. His service record contains sworn statements and 11 negative general counseling statements received between 12 August 1995 and 14 February 1996, for the following reasons: * Assault * Restraining order * Operating privately owned vehicle (POV) without insurance * Army Physical Fitness Test (APFT) failure * Failure to be at place of duty, missing and late to formation more than once * Late to APFT and violation of profile c. On 26 January 1996, the applicant was given a mental status evaluation. The examiner determined he has the mental capacity to understand and participate in proceedings, and was mentally responsible. He was psychologically cleared for any action deemed appropriate by his command. d. On 15 February 1996, the applicant's company commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 14, paragraph 14-12b for a pattern of misconduct. (1) The reasons for the proposed action are as follows: * failure to go at the time prescribed to his appointed place of duty * drove his POV without a valid driver’s license and an expired title * assault * fraud * unlawfully failed to provide adequate insurance for POV (2) The company commander recommended that he receive a discharge under other than honorable conditions. The company commander advised the applicant of his right to: * consult with counsel or retain civilian counsel at no expense to the government * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * cannot request a hearing before an administrative separation board, due to having less than 6 years of active and reserve military service, unless he is being considered for other than honorable conditions discharge * submit statements in his own behalf * waive any of these rights in writing * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge e. Memorandum from his legal counsel, dated 20 February 1996, reporting legal errors with the separation packet as follows: * Initiating commander's report to the separation authority evidences pre-determination is violation of applicant’s due process rights * Initiating commander's report has only one option (separation) * [Applicant] has not had the opportunity to submit statements on his own behalf f. On 23 February 1996, the applicant acknowledged receipt of the notification. He acknowledged that: * he had been advised by his consulting counsel on the basis for the contemplated action to separate him for pattern of misconduct * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded g. Subsequent to this acknowledgement, the immediate commander recommended the applicant's separation under the provisions of AR 635-200, chapter 14, paragraph 14-12b, for pattern of misconduct. h. On 4 March 1996, the applicant's intermediate commander recommended the applicant be separated under the provisions of AR 635-200, chapter 14, paragraph 14-12b, pattern of misconduct. Recommended approval of request for waiver of rehabilitative transfer under the provisions of AR 635-200, chapter 1, paragraph 1-18d and that the applicant's characterization of service be general under honorable. i. Memorandum from the Regimental Legal Administration Center, dated 5 March 1996, stating the separation packet is administratively correct. j. The separation authority approved the request for discharge under the provisions of AR 635-200, chapter 14-12b, pattern of misconduct. Rehabilitative transfer requirements are waived in accordance with AR 635-200, chapter 1, paragraph 1-18d. k. He was discharged from active duty on 15 March 1996. He was discharged under the provisions of AR 635-200, paragraph 14-12b, with an under honorable conditions (general) characterization of service. He completed 3 years and 11 months of active service. His DD Form 214 shows he was awarded or authorized: * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge With Rifle Bar * Driver and Mechanic Badge with Driver-W Bar 5. 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. 6. 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. BOARD DISCUSSION: After reviewing the application and all supporting, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct over his military career with insufficient evidence presented by the applicant to show he has learned and grown from that misconduct, the Board concluded that the characterization of service received at the time of discharge was more than just. 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. 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, 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. ABCMR Record of Proceedings (cont) AR20170000830 5 1