ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170009886 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Constituent Service Form * Congressional Correspondence 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 was told he is not eligible for government employment unless his discharge was characterized as honorable. 3. The applicant provides: a. A Constituent Service Form requesting assistance from Congressman Scott Perry’s office to inquire on his behalf in regards to the upgrade of his general discharge from the Army. b. A letter of support from Congress Scott Perry’s office, dated 1 June 2017, which requests a complete and fair review of the applicant’s case. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 15 July 1980. b. He served overseas in Germany from 25 October 1981 to 18 October 1983 and South Korea from 15 September 1986 to 9 September 1987. c. On 4 January 1985, he accepted nonjudicial punishment, Article 15, for operating a vehicle while drunk. He received a reduction to the grade of E3 (suspended), 14 days extra duty and 14 days restriction. d. On 16 April 1985, he disobeyed a lawful order by driving a vehicle while his driving privileges were suspended. The suspension of nonjudicial punishment imposed was duly executed. e. On 24 December 1987, the applicant was arrested by civil authorities for driving under the influence of an intoxicating liquor. f. On 3 February 1988, his immediate commander initiated a Bar to Reenlistment Certificate citing the applicant’s record of drunk driving on two occasions in which he received an Article 15 and a General Letter of Reprimand. The bar was approved on 17 February 1988. g. On 20 February 1988, the State of Arizona charged the applicant with unlawfully driving while being under influence of an intoxicating liquor on 19 February 1988. h. On 29 August 1988, the State of Arizona found the applicant guilty of the crime of driving a motor vehicle while under the influence of intoxicating liquor while his operator license was suspended, cancelled, revoked or refused. He was sentenced to a 6-month term at the Arizona Department of Corrections. i. On 6 September 1988, the applicant’s immediate commander advised him of his intent to initiate separation action against him in accordance with the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-5d, in effect at the time, for conviction by civil court. j. On 11 October 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 that he can expect to encounter substantial prejudice in civilian life if a discharge other than honorable is issued to him k. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him under the provisions of chapter 14 of AR 635-200 due to conviction by civil court. l. The separation authority reviewed the separation action; waived further rehabilitation requirements and on 18 January 1989, approved the applicant's discharge under the provisions of AR 635-200, Chapter 14-5 and issued him a General Discharge Certificate. m. The applicant was discharged on 2 March 1989. His DD Form 214 shows he was discharged for conviction by civil court with a under honorable conditions characterization of service. He completed 8 years, 1 month and 23 days of net active service and 178 days of lost time. 5. By regulation (AR 635-200), a soldier may be considered for discharge when convicted by civil authorities and sentenced by civil authorities for 6 months or more. A discharge under other than honorable conditions is normally appropriate for a soldier discharged. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. 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 multiple offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that the applicant had a period of prior honorable service which is not currently reflected on his DD Form 214. Therefore, the Board recommended making that change to more accurately depict the military service of the applicant. 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 by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 15 July 1980 until 3 April 1984.” 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 upgrading the characterization of his discharge. 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. Chapter 14-5 of this regulation provides a soldier may be considered for discharge when convicted by civil authorities and sentenced by civil authorities for 6 months or more. A discharge under other than honorable conditions is normally appropriate for a soldier discharged. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009886 4 1