ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20170009944 APPLICANT REQUESTS: reconsideration for the upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online) * DD Form 214 (Report of Separation from Active Duty) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NGB Form 23 (Army NG (ARNG) Retirement Credits Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160000491 on 8 June 2017. 2. The applicant states, in effect, he would like to better his life and get a better job. 3. A review of the applicant’s service record shows: a. Having had prior enlisted service in the ARNG, the applicant enlisted in the Regular Army on 1 October 1979. He reenlisted on 2 July 1981 for 6 years. He held military occupational specialty 11B (Infantryman). b. He served in multiple units at Fort Ord, CA between 1979 and 1987 and one overseas assignment in Panama from 28 July 1981 to 25 July 1983. c. His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to sergeant (SGT/E-5) effective 3 February 1985. 4. On 11 August 1987, his immediate commander initiated a bar to reenlistment action against him. He listed the following incidents as the basis for his bar: * 7 April 1985 - speeding citation (12 miles per hour over the speed limit on post) * 4 June 1985 – driving while under the influence (DUI) of alcohol and with more than a .10 percent alcohol in blood * 17 February 1986 - reckless driving involving a traffic accident without injuries * 22 July 1986 - DUI of alcohol and with more than a .10 percent alcohol in blood 5. On 11 August 1987, the applicant acknowledged receipt of his immediate commander’s recommendation to bar him from reenlistment. 6. On 20 August 1987, a mental evaluation was conducted. The examiner stated the applicant had the mental capacity to understand and participate in board proceedings and was mentally responsible. 7. On 3 September 1987, the bar to reenlistment was approved by the 7th Infantry Division commanding general. 8. On 21 September 1987, the applicant's immediate commander notified him in writing that action was being initiated to discharge him from the U.S. Army under the provisions of paragraph 14-12b (Pattern of Misconduct) and paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). The recommendation for discharge is due to following incidents: * 7 April 1985 - speeding * 4 June 1985 - arrested DUI by the California Highway Patrol * 20 July 1986 - arrested for corporal injury to his spouse and DUI 9. On 21 September 1987, the applicant acknowledged receipt of the pending separation action against him. 10 On 23 September 1987, he consulted with legal counsel. He acknowledged counsel had advised him of the basis for the contemplated separation action, and that it was for a pattern of misconduct and commission of a serious offense. Counsel further advised him of the rights available to him, and of the effect of any action taken by him in waiving his rights. He did not submit a statement on his own behalf. He: * requested to have his case considered by an administrative separation board, and elected to exercise his right to personally appear before the board * chose to be represented by counsel * opted not to submit statements in his own behalf * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * acknowledged he understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge that was less than honorable 11. On 23 September 1987, the applicant's immediate commander recommended that the applicant be separated under the provisions of paragraphs 14-12b and 14-12c, AR 635-200. He recommended that rehabilitation requirements in accordance with (IAW) paragraph 1-18d, AR 635-200 be waived. 12. On 30 September 1987, the applicant's intermediate commander recommended that the applicant be separated under the provisions of paragraphs 14-12b and 14-12c, AR 635-200. He recommended that rehabilitation requirements IAW paragraph 1-18d, AR 635-200 be waived and he receive a general discharge certificate. 13. On 26 October 1987, the applicant consulted with counsel again. Based on this consultation, he waived his right to have his case heard by an administrative separation board contingent on receiving a general discharge under honorable conditions. He otherwise made the same elections as he had done on 23 September 1987. He did not submit a statement on his own behalf. 14. On 23 November 1987, the separation authority approved his request for a conditional waiver. The requirements set forth under paragraph 1-18, AR 635-200, pertaining to a rehabilitative transfer were waived. He approved the proposed separation under the provisions of paragraph 14-12c (Commission of a Serious Offense), AR 635-200 and directed the issuance of a general discharge certificate. 15. He was discharged from active duty on 15 December 1987, under the provisions of paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense with a general discharge certificate. He completed 8 years, 2 months and 15 days of net active service this period. He was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Qualification Badge (Hand Grenade) * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal (3rd Award) * Noncommissioned Officer Professional Development Ribbon (1st Award) * Army Achievement Medal (1st Oak Leaf Cluster) 16. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 17. On 17 November 2015, the applicant requested an upgrade of his discharge through the Army Board for Correction of Military Records (ABCMR). On 8 June 2017, the ABCMR determined that the evidence presented did not demonstrate the existence of a probable error or injustice and the Board denied his request. 18. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, conviction by civil authorities, desertion, and absence without leave. 19. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined partial relief is 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. He was discharged for criminal offenses and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. 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 amendment of ABCMR’s decision in Docket Number AR20160000491, on 8 June 2017. 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 1 October 1979 until 3 June 1987.” 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-Active Duty Enlisted Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 2-5, states a Soldier could request to waive his/her right to a hearing before an administrative separation board contingent on receiving a specific characterization of service. Those Soldiers had to submit a request and commanders were required to ensure the Soldiers were not coerced into waiving his/her right to a board. The appropriate separation authority could either approve or disapprove the conditional waiver request. b. Paragraph 3-7a, an honorable discharge is a separation with honor. 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. Paragraph 3-7b, 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion, and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is unlikely to succeed or impractical. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. 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) AR20170009944 4 1