ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20170005729 APPLICANT REQUESTS: in effect, his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 22 March 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 is seeking aid from the Department of Veterans Affairs (VA) because he is homeless, in need of medical benefits, and assistance for school. 3. The applicant enlisted in the Regular Army on 16 April 1991. 4. The applicant's record contains evidence that shows he was arrested for driving under the influence (DUI) on 30 January 1993 and 7 February 1993. 5. The applicant’s record contains a Standard Form (SF) 88 (Report of Medical Examination) and an SF 93 (Report of Medical History) that show he underwent a separation examination on 9 February 1993. These examinations show he had no medical concerns and was qualified for separation. 6. It appears a civilian arrest warrant was issued on or about 23 February 1993, based on the applicant writing a check with insufficient funds. 7. The applicant was barred from reenlistment on or about 11 March 1993. 8. The applicant underwent a mental status evaluation on or about 17 March 1993. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows: * he had the mental capacity to understand and participate in the proceedings * was mentally responsible * met retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 * was psychiatrically cleared for any administrative action deemed appropriate by command 9. The applicant's service records contains a DA Form 4856 (General Counseling Form), dated 23 March 1993. The form shows he was counseled for: * DUI charges on 30 January 1993 and 7 February 1993 * a warrant issued for writing checks for insufficient funds on 23 February 1993 * he was administratively reduced from private first class/E-3 to private/E-2 on 4 March 1993 * his commander was recommending he be separated from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14 10. The applicant's commander notified the applicant on 23 March 1993 of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. The commander cited the applicant's DUI violations on 30 January 1993 and 7 February 1993. He recommended the applicant receive a general discharge. 11. The applicant's commander formally recommended his separation from service on 26 April 1993, under the provisions of Army Regulation 635-200, paragraph 14-12c. The commander reiterated his aforementioned reasons for his request. 12. The applicant consulted with counsel on 28 April 1993 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He was not entitled to have his case considered by a board of officers, or a personal appearance before a board of officers. He was advised he could to submit statements in his own behalf but elected not to make any statements. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. 13. The separation authority approved the applicant's discharge on 4 May 1993, under the provisions of Army Regulation 635-200, paragraph 14-12(c) misconduct - commission of a serious offense and directed he be issued a DD Form 257A (General Discharge Certificate). The requirement for a rehabilitative transfer was waived; the separation authority determined that rehabilitation would not be in the best interests of the Army as it would not produce a quality Soldier. 14. The applicant was discharged on 11 May 1993 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. The DD Form 214 he was issued confirms his service was characterized as under honorable conditions (general). 15. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, a civilian arrest warrant, a bar to reenlistment and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. b. Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005729 5 1