ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170001074 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Previous Army Review Boards Agency (ARBA) Memorandum of Consideration * Civilian Certificate of Achievement * Civilian Certificate of Completion (3) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999026705 on 6 October 1999. 2. The applicant states that he believes the test was inaccurate and aside from that, he was a very honorable 20 year New York State (NYS) employee at Oasis treating addicted clients and veterans. 3. The applicant provides: a. Previous memorandum of consideration, dated 6 October 1999. b. Certificate of achievement, dated 30 May 2014, which states the applicant successfully completed the NYS Right to know Law Course. c. Certificates of completion, dated 29 June 2015 and 19 November 2015, which states the applicant successfully completed Privacy and Security of Health Information training, and Equal Employment Opportunity training. d. Certificate of completion, dated 28 January 2016, which states the applicant successfully completed NYS Right to Know training. a. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 28 October 1980. b. He served in Germany from 6 March 1981 to 1 March 1983. c. On 28 October 1982, the applicant accepted nonjudicial punishment (NJP) for one specifications of striking another service member with a closed fist. His punishment consisted, in part, reduction to private (PV2)/E-2. d. On 17 August 1983, the company commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against the applicant. He cited the applicant disorderly conduct and striking another member. e. On 6 September 1983, 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 – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b (Patterns of Misconduct) for a pattern of misconduct that clearly indicates that he cannot adjust to lifestyle and standards of being a Soldier. f. He consulted with legal counsel on 7 September 1983 and subsequently acknowledged the commander’s intent to separate him under the provisions of Army Regulation 635-200, chapter 14-12b. He acknowledged that he may: * expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * may be ineligible for many or all benefits as a veteran under both Federal and State laws g. In a memorandum from the Commanding General of the 24th Infantry Division, dated 12 October 1983, a waiver for further rehabilitative efforts was approved. h. On 12 October 1983, following a legal review for legal sufficiency, the separation authority approved the request for discharge for a pattern of misconduct and commission of a serious offense and ordered his service be characterized as an under honorable conditions. i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that on 19 October 1983, he was discharged from active duty under the provisions of AR 635-200, Chapter 14-12b &12c (Commission of a Serious Offense) with a general under honorable conditions characterization of service. He had 2 years, 11 months and 22 days of active duty service. j. His DD Form 214 further shows he was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Badge with Rifle Bar (M16A1), 3rd Class a. Marksmanship Badge with Hand Grenade Bar, Overseas Service Ribbon, and Driver’s and Mechanic’s Badge with Bar . k. Following his discharge from active duty, he enlisted in the New York Army National Guard (NYANG) on 9 August 1988. His NGB Form 22 (Report of Separation and Record of Service) reflects that on 8 August 1995, he was separated from the NYNG under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) with an honorable conditions characterization of service. l. The applicant applied on 13 February 1989 to the Army Discharge Review Board (ADRB) for an upgrade of his discharge but the ADRB found his discharge proper and equitable. The ADRB denied his request. m. On 6 October 199, the ABCMR also considered his petition for an upgrade but found no justification, error, or injustice, and denied his request. 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 documents, 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 misconcudt in the record, some of which involved violent behaviors, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to 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. 5/13/2019 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. 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. 2. 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 1. that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.