ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170010349 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * 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 he is seeking an upgrade of his under other than honorable conditions discharge. a. Since his discharge he has been a reputable citizen in the community. He has worked hard to provide a stable and secure life for his family. He volunteers his time developing and mentoring youth through educational and sports programs. b. He was young when he was discharged from the military for misconduct and was told he would receive a general discharge. He was not sure what that meant at the time; however, 22 years later his attempts to get a loan for a home failed when he was denied by the Department of Veterans Affairs (VA) due to the type of discharge. He would like to purchase his first home for his family. c. He has always been intrigued by the military coming from a lineage of service members. His grandfather was a Purple Heart recipient in World War II. He also had multiple uncles serve in Vietnam along with several cousins serving in all branches of the military. d. He provides details on what led him to be patriotic and comes from a lineage of service members from his grandfather who was awarded a Purple Heart in World War II, to uncles that served in Vietnam, and cousins that serve in all branches of the military today. He proudly displays his American flag at his home daily. e. He has been happily married going on 21 years and a proud father of five children. He is requesting an upgrade in hopes of being able to purchase his first home through a VA loan. He made mad choices a young age, but asks that he not be punished for one bad choice. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 2 October 1991. b. He received nonjudicial punishment on 16 August 1993 for being absent from his place of duty. c. He was released for disciplinary reasons from the Primary Leadership Development Course on 30 November 1994 for failure to make bed check and being arrested by civil authorities. He acknowledged receipt of his academic referral on the same day. d. He entered a plea agreement in March of 1995 with the State of Kansas for charges of attempted kidnapping, stalking, and attempted burglary. e. On 28 June 1995, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for conviction by a civil court. f. On 30 June 1995, after consulting with legal counsel, he acknowledged: * his right to appear before an administrative separation board * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the ADRB or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge g. On 9 August 1995, he received notification of his administrative board hearing to take place on 25 August 1995. h. On 12 September 1995, consistent with the findings and recommendations of the board, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-5 for conviction by civil authorities. He would be issued an Under Other than Honorable Discharge Certificate. i. He was discharged from active duty on 21 September 1995 with an under other than honorable characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 6 months, and 5 days of active service. It also shows he was awarded or authorized: * Driver Badge with Track * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 4. By regulation, an individual will be considered for discharge and the case initiated and processed through the chain of command to the general court-martial convening authority when initially convicted by civil authorities, or action is taken which is tantamount of a finding of guilty. 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. 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 3-7a (Honorable Discharge) states 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. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14-5 of the regulation states an individual will be considered for discharge and the case initiated and processed through the chain of command to the general court-martial convening authority when initially convicted by civil authorities, or action is taken which is tantamount of a finding of guilty. 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) AR20170010349 4 1