ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170004559 APPLICANT REQUESTS: * his narrative reason for separation changed * upgrade his characterization of service from under other than honorable conditions to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 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 has been married for thirty years, raised three kids and has been working as a machinist for 18 years. He is employed with an oil and gas company, and served a year and a half overseas. He has received numerous awards for exemplary performance. He served in the Army as a military occupational specialty (MOS) 19D Cavalry Scout, and received an Army Achievement Medal (AAM). He states he was a M3 Bradley Fighting Vehicle driver, and held a secret security clearance while serving in Europe. While he was stationed at Fort Hood, TX, his parents were going through severe marital issues and separated. He was unaware of their locations, and was worried, so he went absent without leave (AWOL) to find out about his parents, and family. That is the reason he was AWOL for so many days. 3. A review of the applicant’s service record shows: a. He enlisted on 3 May 1985, in to the Regular Army (RA). He served in Germany from 1 September 1985 to 20 February 1987. a. b. On 24 February 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of unlawfully entering a quarters which was not his own. His punishment consisted, in part, of reduction to private/E-2. c. He was reported AWOL from 3 April 1987 to 22 April 1987 for a period of 20 days. d. His DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 29 April 1987. He was charged with one specification of AWOL for a period of 20 days from 3 April 1987 to 22 April 1987. e. On 14 May 1987, he was convicted by a summary court-martial of one specification of AWOL from 3 to 23 April 1987. The court sentenced him to 20 days of correctional custody and reduction to private/E-1. f. On 8 June 1987, a legal review was conducted and concluded the sentence was legal. g. On 20 January 1988, the applicant accepted NJP under the provisions of Article 15 for one specification of wrongful use of marijuana. h. On 21 January 1988, a DA Form 4126 (Bar to Reenlistment Certificate) was approved by the chain of command for court martial and NJP. i. On 1 February 1988, his immediate 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 14-12c (Commission of a Serious Offense), based on two company grade Article 15s: one for AWOL and one for wrongful use of marijuana (positive urinalysis). j. The applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12c. He consulted with legal counsel on 3 February 1988 and acknowledged: * he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge k. 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, commission of a serious offense. a. l. On 4 February 1988, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under other than honorable conditions. m. On 17 February 1988, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for commission of a serious offense and ordered his service be characterized as under other than honorable conditions. He also waived rehabilitative and counseling requirements. n. On 26 February 1988, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general under other than honorable conditions characterization of service. He completed 2 years, 11 months, and 4 days of active duty service. He had 20 days of lost time from 3 April 1987 to 22 April 1987. His DD Form 214 shows in: * item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized): Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Badge with Rifle Bar (M16), Expert Marksmanship Badge with Hand Grenade Bar * item 24 (Character of Service), Under Other Than Honorable Conditions * item 26 (Separation Code), JKQ (Misconduct – Commission of a Serious Offense) * item 28 (Narrative Reason for Separation), Misconduct – Commission of a Serious Offense 4. By regulation (AR 635-5), item 28 of the version of the DD Form 214 in effect at the time listed the narrative reason for separation based on the regulatory or statutory authority for separation. 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. By regulation, Soldiers separated under the provisions of chapter 14-12c of AR 635-200 due to commission of a serious offense are assigned Separation Code JKQ. The narrative reason for this type of discharge Misconduct – Commission of a Serious Offense. 7. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the lengthy pattern of misconduct in the record, as well as corroborating evidence to the applicant’s statement to show he has learned and grown from the events leading to his discharge, the Board agreed that the applicant's discharge characterization and reason for separation was warranted as a result of the misconduct. 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. 0 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. AR 635-5 (Separation Documents) in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It stated that item 28, is based on the regulatory or statutory authority. 3. 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. 4. 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 1. 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.