ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170006851 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to either a general, under honorable conditions discharge or an honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the review of Discharge or Dismissal from the Armed Forces 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 did not know that there were any errors to this service records. He was an alcoholic and a drug addict at the time of his service. He learned from his addiction over the past 16 years is that he let it control him. He has been clean and sober for nearly 16 years and he is trying to clean up the wreckage from his past. This is one of his last wreckages. His sobriety date is 23 April 2001. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 August 1976. b. On 10 November 1976, he accepted nonjudicial punishment (NJP) under Article 15 for one specification of absenting himself without leave (AWOL) from 5 November 1976 to 7 November 1976. c. On 22 June 1977, he accepted NJP for one specification of wasting military property. d. On 5 August 1977, he accepted NJP for one specification of dereliction of duty. The portion of his punishment pertaining to forfeiture of $150 pay for one month was suspended to 90 days. e. On 29 August 1977, that portion of his punishment pertaining to forfeiture of $150 pay for one month was suspended to 90 days for nonjudicial punishment received on 5 August 1977 was vacated. f. On 11 October 1977, he accepted NJP for one specification of failing to go at the time prescribed to his appointed place of duty. g. On 7 January 1978, he accepted NJP for one specification of AWOL from 16 December 1977 to 20 December 1977. h. On 13 March 1978, he accepted NJP for one specification of AWOL from 17 February 1978 to 23 February 1978. i. On 30 March 1978, he accepted NJP for one specification of AWOL from 17 March 1978 to 27 March 1978. j. On 30 March 1978, his immediate commander notified him of his intention to initiate separation under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-33b (Other Misconduct). He acknowledged receipt on 30 March 1978. k. After consulting with legal counsel, he acknowledged: * Maximum punishment * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he may be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of issuance of a discharge under other than honorable conditions * he elected not to submit a statement on his own behalf l. On 13 April 1978, consistent with the chain of command recommendations, the separation approval authority approved the discharge under the provisions of chapter 14-33b, AR 635-200. He would be issued an Other than Honorable Discharge Certificate (DD Form 794A). m. On 8 May 1978, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 14-33b of AR 635-200 with an under other than honorable conditions characterization of service. He completed 1 year, 8 months, and 22 days of active duty. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar 4. By regulation, this chapter establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. 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, 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 short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence to show that he has learned and grown from the events leading to his discharge, the Board concluded there was insufficient evidence to show there was an error or injustice which would warrant making a change to the applicant’s characterization of service. 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 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14-33b (Patterns of Misconduct) states a pattern of misconduct is construed as frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and/or an established pattern shoeing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20170006851 4 1