ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170001408 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Three letters of support 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 an alcoholic and had a driving under the influence charge and missed a formation. He further states that he is now clean. 3. The applicant provides: a. A letter of support from XX, which states that she has known the applicant for over 20 years. She further states that the applicant has always been considerate of others, generous, honest, loyal, dedicated, and trustworthy. b. A letter of support from XX, which states that she has known the applicant for 4 years. As a coworker, she stated that the applicant is hard working, quiet, respectful, and dependable. c. A letter of support from XX, dated 6 December 2016, which states that he has known the applicant for more than 5 years. As to his character, the statement provided reads that the applicant was raised in the church, is very kind, cooperative and considerate of others. He further states that the applicant is sincere, devoted, and honest. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 November 1989. b. He served in Saudi Arabia from 4 September 1990 to 11 August 1991 and in Egypt from 18 September 1992 to 17 September 1993. c. He received a suspension of installation driving privileges for driving while intoxicated (DWI) on 21 February 1994. d. He received a General Officer Memorandum of Reprimand on 22 November 1994 for refusing to take a blood alcohol content test and driving while intoxicated on 16 October 1994. e. He received non-judicial punishment on 7 December 1994 for failure to report to an appointed place of duty and incapacitated for the proper performance of duties. His punishment included reduction to private/E-2. f. On 9 March 1995, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) for the commission of a serious offense (a general officer letter of reprimand for DWI, a second arrest for DWI, receiving a field grade Article 15 for failure to report and incapacitation for duty due to previous overindulgence on intoxicating liquor or drugs, one vacation of suspension for drunk driving, and negative counseling for failure to report). g. On 9 March 1995, he acknowledged receipt of the notification of the separation action. h. On 10 March 1995, after consulting with legal counsel, he further acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * ineligible to apply for enlistment in the U.S. Army for 2 years after discharge i. On 13 March 1995, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for the commission of a serious offense. He would be issued a General Discharge Certificate. j. He was discharged from active duty on 29 March 1995 with a general, under honorable conditions characterization of service. His DD 214 reflects completion of 5 years, 4 months, and 9 days of active service. It further shows that he was awarded or authorized: * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Southwest Asia Service Medal (3rd Award) * Army Service Ribbon * Kuwait Liberation Medal * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar 5. By regulation, members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 6. In reaching its determination, the Board can consider the applicants 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 multiple UCMJ offenses and the applicant already obtaining 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 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. 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. b. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001408 4 1