BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20170009316 APPLICANT REQUESTS: correction of his record to reflect: * Discharge upgrade from General to Honorable * He is eligible for Montgomery GI Bill (MGIB) * He received the Army Achievement Medal (AAM) * He received his General Educational Development (GED) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Leave and Earning Statement (LES) * Permanent Orders 151-31 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * General Discharge Certificate * General Educational Development (GED) Transcript * Mohave Community College Paramedic Certificate * Northcentral University Bachelor Degree * Emergency Management Institute Student Transcript * Certificate of Special Congressional Recognition 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 correction to the record to reflect he received the AAM will be administratively corrected; therefore, the request will not be consider in the remaining Record of Proceedings. The Board will consider: * Discharge upgrade from General to Honorable * He is eligible for Montgomery GI Bill (MGIB) * He received his General Educational Development (GED) 3. The applicant states he was separated under Article 635-200 paragraph 14-12c, for commission of a serious offense, however, he was found not guilty of the charges filed in the civilian court of a serious offense as defined by paragraph 14-12c. At the time of discharge, he was 20 years old and had very little assistance understanding the documents and understanding how to help himself remedy this injustice of a general discharge. He was separated from the military before the outcome of the civilian court case was determined; therefore, the records is in error and he requests his discharge be upgraded to Honorable. . 4. Additionally, between the time of his separation and his request that day, he has shown ample service to his community in a number of endeavors, not limited to but including: * 15 years of service in fire departments both Wildland and Urban * 8 years of service as a paramedic with urban agencies and tribal agencies * he completed a higher education degree and received a Bachelor of Business Administration Degree in Homeland Security * his career requires security clearances with Transportation Security Administration of which he has * he has received numerous awards and certificates for his services in the fire and Emergency Medical Services career * California State Legislature Certificate of Recognition for Fire Service * United States Congressional Certificate of Recognition for Fire Service 5. He further states his DD Form 214 shows he did not contribute to the Post Vietnam Era Veterans Educational Assistance; however, he contributed at $100.00 per month and believes it an injustice that he is not eligible because he paid for the benefit in hopes of using it in the future. His DD Form 214, 15b, states he was not a high school graduate or equivalent when in fact he successfully completed the requirements of the General Education Development test at Fort Bliss, Texas in 1987 during his service at Advanced Individual Training school. He attached this document. 6. A review of the applicant’s records show: a. On 13 July 1987, he enlisted in the Regular Army for three years b. On 22 May 1989, he received a DA Form 4187 (Personnel Action). His duty status was changed from Present for Duty to Confined Civil Authorities on 19 May 1989 when he was apprehended and taken to jail. c. On 10 August 1989, he received a DA Form 4187 changing his duty status from Confined Civil Authorities to Present for Duty. d. A DA Form 2-1 (Personnel Qualification Record) shows he was in civilian confinement from 19 May 1989 to 8 August 1989. e. On 28 December 1989, he received a DA Form 4187 advancing him to the rank of Specialist (SPC)/ E-4. f. On 18 June 1990, the applicant received board proceedings for the following: 1) Type of elimination: Chapter 14-12c, commission of serious offense. 2) Recommendation of the board: General Discharge with characterization of service being under honorable conditions. 3) At 20 years old and having been in the Army for 2 years and 10 months, the applicant did not have any dependents and has received an Army Service Ribbon. 4) He was arrested by King County Sheriff’s Deputies on the charge of assault with a firearm, but he plead guilty to the lesser charge of reckless endangerment and was convicted in the King County Court. 5) The charges stem from the applicant’s fight with his roommate outside his residence during which the applicant entered his house and met his roommate who followed him into the house at the door the applicant met his roommate with two pistol grip shotguns. 6) There was a struggle and one of the weapons discharged. 7) The applicant’s Commander, Executive Officer and First Sergeant testified the applicant’s on-duty performance was acceptable, but his off-duty performance was marked by numerous unfavorable incidents. 8) The applicant testified the civil charges resulted from a misunderstanding with his roommate, he was taking his weapons from the kitchen where he has been cleaning them. 9) The applicant said he kept the weapon loaded for self-protection. 10) The applicant’s fiancé, witnessed the struggle and testified the applicant’s roommate misunderstood his intent in carrying his pistols and grabbed them causing on to discharge. g. On 29 June 1990 he received an Under Honorable Conditions (General) Discharge. 7. The applicant provides the following documents in support of his request: a. Leave and Earning Statement (LES), dated 1-31 August 1987, shows $100.00 was collected from his pay for the GI Bill in August 1987 and he had a GI Balance Due of $1100.00. b. Permanent Orders 151-31, dated 9 August 1989, shows he received an AAM. c. DD Form 214, dated 29 June 1990 which shows: * Under Honorable Conditions (General) Discharge * Narrative Reason for Separation: Misconduct- Commission of a Serious Offense * AAM is not * he did not contribute to Post-Vietnam Era Veteran’s Educational Assistance Program * he was not a high school graduate or equivalent d. General Discharge Certificate shows he received a General Discharge Under Honorable Conditions on 29 June 1990. e. General Educational Development (GED) Transcript shows he passed the General Educational Development test on 14 August 1995. f. Mohave Community College Paramedic Certificate shows he received a Certificate of Proficiency in Paramedic on 13 December 2003 g. Northcentral University Bachelor Degree shows he received a Bachelor of Business Administration in Homeland Security on 1 January 2013. h. Emergency Management Institute Student Transcript, dated 5 November 2013, shows he completed Continuing Education Units of eight courses. i. Certificate of Special Congressional Recognition shows he was awarded Rookie of the Year Mariposa County Fire Department on 5 October 2014. 8. See REFERENCES below. 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, his civil conviction and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct; the Board considered the post-service documents provided by the applicant, but found them insufficient to support a clemency determination. The Board found evidence of the collection for GI Bill, but was unable to determine if he was fully vested in the GI Bill. The Board considered his statement, but found that the documentation of his GED showed a date after his period of service. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation, the absence of GI Bill benefits and an entry reflecting GED were not in error or unjust. The Board concurred with the correction pertaining to the applicant’s AAM. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as shown in the Administrative Note (s) that follow. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that stated above. 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): 1. Request for correction of military records, correct the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending July 13, 1987, by adding the following award to item 13: * Army Achievement Medal (AAM) 2. The following documents are sufficient to justify correction of the DD Form 214 without action by the Board. * Permanent Orders 151-31 REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b 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. Paragraph 14-12b provides a pattern of misconduct consists of discreditable involvement with civil or military authorities and/or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. 6. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The Army Achievement Medal is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 7. Chapter 30, Title 38 of the U.S, Code, established eligibility requirements for participation in the Veteran's Educational Assistance Act of 1984 (New GI Bill). It provided that individuals who entered an initial period of active duty on or after 1 July 1985 would be automatically enrolled in the program unless they opted to disenroll within a specific time frame established by the individual Services. Once enrolled in the New GI Bill, the individual's basic pay was reduced $100.00 per month for each of the first full 12 months of active duty and could not be refunded, suspended or stopped. 8. From the VA Website: Available Benefits and Eligibility for the Veterans Educational Assistance Program (VEAP) are: Benefit entitlement is for one to 36 months depending on the number of monthly contributions. The service member has 10 years from release from active duty to use VEAP benefits. If the entitlement is not used after the 10-year period, a portion remaining in the fund will be automatically refunded. For eligibility, a service member must meet the following requirements to qualify: * Entered service for the first time between Jan. 1, 1977, and June 30, 1985 * Opened a contribution account before April 1, 1987 * Voluntarily contributed from $25 to $2,700 * Completed first period of service and discharged or released from service under conditions other than dishonorable * If service member is currently on active duty and wishes to receive VEAP benefits, he/she must have at least three months of contributions available. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009316 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1