ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 June 2019 DOCKET NUMBER: 20170011583 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 at the time of his discharge he was told that he could request an upgrade from other than honorable to honorable because of the deferred judgement. He fell asleep in a bar bathroom, woke up and everyone was gone. He broke out and he was arrested for burglary. Because of this, he lost his security clearance and therefore the role of a military policeman. He was discharged on the inability to adapt to another MOS. He served one year probation, paid a fine, and his record was expunged. He was led to believe that because of this he could upgrade his discharge to honorable. As a father with three children, he realized that he needs to do as he has taught them to do. He has learned from his mistakes. 3. The applicant’s service record shows: a. He entered active duty on 10 May 1979. His military service record is void of all the facts and circumstances surrounding the applicant’s discharge and therefore unavailable for the Board to review. However, his record contains: b. His DA Form 2-1, shows that he was assigned to the 241st Military Police Detachment, Fitzsimons Army Medical Center, Aurora, CO from 29 August 1980 to 6 March 1981. c. He accepted nonjudicial punishment on 21 January 1981 for wrongfully having in his possession a small box containing marijuana residue and particles, and three hemostats with suspected marijuana residue on the tips. His punishment in part was reduction to E-3. d. Orders 42-30, dated 3 March 1980 shows that he was reassigned to the Fitzsimons Army Medical Center Separation Point, Aurora, CO on 6 March 1981 and discharged on 6 March 1981. e. His DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged from the Army on 6 March 1981, under the provisions of section III, acts or patterns of misconduct, chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).for misconduct-conviction by civil court, with separation code JKB civil court conviction. His characterization was under other than honorable conditions. He completed 1 years, 9 months, and 27 days of active service this period. He had no lost time. It also shows he was awarded or authorized: • Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) • Expert Marksmanship Qualification Badge with Hand Grenade Bar • Marksman Badge with Pistol Bar (Caliber .45) 4. By regulation, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriately. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XX XX 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. AR 635-200, in effect at the time, provides 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 -12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 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 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. ABCMR Record of Proceedings (cont) 20170011583 4 1