RMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170006384 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 15 February 2017 * Self-Authored Statement * DD Form 149, dated 15 June 2017 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 received an under other than honorable conditions discharge and he feels he was forced to be chaptered for minor mistakes he made during the time of military downsizing. He was not given other options at that time. The discharge was a result of an Article 15; not a court-martial. He served as an infantryman from 1993 to 1995. He was discharged for making mistakes as a naïve young man. While on duty his monthly reviews were categorized as his service being above and beyond the call of duty. Now as an older man, he very much regrets the mistakes he made in the past. He would like his discharge status to be changed to honorable if possible. He would like to pursue advancement in his career as a health and safety professional and continue higher learning to set a good example to his children. He also provides an additional DD Form 149, dated 15 June 2017 in which he re-states his record is unjust for the reason that he was not given an option other than to discharge as punishment along with an Article 15. He served the punishment granted by the Article 15 to its fullest. He was not given counsel or any other options at the time because of the military downsizing. He believes he has paid for his minor mistakes he made towards the end of his enlistment in the army. While on active duty all his service reports state that he served above and beyond the call of duty he also received medals for his service. He sincerely, hopes the review Board takes his application into consideration and makes the right decision as other than a bad mistake from a young man he served his country proudly and honorably. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) 20 July 1993 for a period of 3 years. b. He served in Cuba from 9 September 1994 to 23 January 1995. c. On 3 May 1994, the applicant accepted nonjudicial punishment (NJP) because he unlawfully strike Private (PV2) X__ in the nose with a closed fist, unlawfully strike Private First Class (PFC) X__ in the face with a closed fist, and unlawfully strike Specialist (SPC) X__ in the head with his hand. His punishment consisted of reduction to private/E-1, and forfeiture of $200 pay per month for 2 months d. On 11 May 1995, the applicant accepted NJP assaulting PFC X __ by striking him the face, mouth and kicking him in the chest, committing an assault on PFC X__ by striking him in the face and head with a dangerous weapon; wrongfully communicating to PV2 X__ a threat; failing to go to the appointed place of duty; and making a false official statement to SSG X__. His punishment consisted of reduction to PV2/E-2, and forfeiture of $223 pay per month for 2 months. e. On 9 August 1995, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200, paragraph 14-12b (Pattern of Misconduct). The immediate commander recommended an under other than honorable conditions discharge. The applicant’s record is void of the date of acknowledgment. f. On 29 August 1995, he was advised of his rights and consulted with legal counsel. He waived his rights and did not submit any statements on his behalf. He understood: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued * he may be ineligible for many or all benefits as a veteran under both Federal and State laws if issued a discharge under other than honorable conditions * he may make application to the Army Discharge Review Board or the Army Board of Corrections of Military Records for upgrading, however, an act of consideration by either Board does not imply that discharge would be upgraded g. Following the applicant's consultation, his chain of command initiated separation action against him. The intermediate commander recommended approval of the separation of an under other than honorable conditions discharge. h. On 6 September 1995, the separation authority approved the recommendation for separation under the provisions of AR 635-200, paragraph 14-12b, (Pattern of Misconduct) with a characterization of service under other than honorable conditions discharge. i. On 15 September 1995, the applicant was discharged from the Army under the provisions of AR 635-200, paragraph 14-12b (Pattern of Misconduct) with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 1 month, and 26 days of active service. It also shows he was awarded or authorized: * Joint Meritorious Unit Award * National Defense Service Medal * Humanitarian Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M16) 5. By regulation, chapter 14 of AR 635-200 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the serious criminal nature of the misconduct and the misconduct involving violence towards others, the Board agreed that the applicant's discharge characterization 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006384 4 1