ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170006572 APPLICANT REQUESTS: an upgrade of his other than 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) 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 wants to be eligible to use military benefits. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 16 April 1986. b. He accepted nonjudicial punishment (NJP), Article 15, on 7 June 1988 for being absent without leave from 1 June 1988 to 4 June 1988. His punishment consisted of reduction to E-1 (suspended), forfeiture of $157 pay, and extra duty and restriction. c. He accepted NJP on 30 June 1988, for failure to go to at the time prescribed to place the appointed place of duty. Suspension of punishment for Article 15 received on 7 June 1988 was vacated and the applicant was reduced to private/E1. d. He accepted NJP on 14 July 1988 with two specifications of failure to go at the time prescribed to the appointed place of duty. He received 7 days extra duty. e. On 14 July 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12b (2), in effect at the time, for a pattern of misconduct. The commander indicated that his recommendation is based on the following: the applicant received two Company Grade Article 15 1s one for AWOL from 1 June 1988 to 4 June 1988 and the other for failure to go at the time prescribed to place of duty. He also received a Summary Article 15 with two specifications of failure to go at the time prescribed to place of duty. The commander felt the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. f. On 15 July 1988, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and did not submit statements on his own behalf. He acknowledged: * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws g. Subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for a pattern of misconduct. The chain of command recommended approval. h. On 28 July 1988, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-12b, by reason of misconduct, pattern of misconduct and ordered his service be characterized as under honorable conditions (general), and he be issued a General Discharge Certificate. i. The applicant was discharged from active duty on 14 April 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14-12b of AR 635-200 and was issued a General Discharge Certificate. He completed 2 years, 3 months, and 21 days of active service with 3 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Overseas Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M16) * Expert Marksmanship Qualification Badge with Grenade Bar 4. By regulation, action will be taken to separate a soldier for a pattern of misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14-2b. 5. 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 there is insufficient evidence to grant relief. Based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for 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 characterization would be clearly in appropriate. 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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14, 12b of this regulation provides procedures for separating personnel for a pattern of misconduct. 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. ABCMR Record of Proceedings (cont) AR20170006572 3 1