ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20170012370 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable. 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 his discharge and the process that he had to follow to get his discharge have caused him a hardship. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army 24 February 1977. He reenlisted on 17 December 1980, 5 February 1985, 6 January1986, and 17 October 1991. b. He served in: * Germany from 23 March 1978 to 26 January 1981 * Germany from 19 March 1986 to 8 March 1989 * Saudi Arabia from 14 January 1991 to 8 May 1991 * Germany from 26 January 1992 to 15 January 1994 c. On 22 May 1992, the applicant received a General Officer Memorandum of Reprimand after he was apprehended for being drunk and fleeing the scene of a traffic accident. d. On 12 January 1993, a Bar to Reenlistment Certificate was recommended for drunken driving and fleeing the scene of an accident, assault, and conduct unbecoming of an noncommissioned officer. e. On 22 January 1993, the applicant received a medical and mental evaluation and was found within normal limits. There was no evidence of a psychological disorder, cleared for any administrative action deemed appropriate by command. f. On 2 April 1003, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 14-12 c (Misconduct – Commission of a Serious offense). He stated that two different reports had been received by this command stating that his conduct, while under the influence of alcohol, was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. g. On 5 April 1993, he consulted with counsel. Counsel advised him of the basis for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights. He understood that if he has less than six (6) years of total active and reserve military service at the time of separation and being considered for separation under AR 635-200, he is not entitled to have his case considered by an administrative board unless he is being considered for a discharge under other than honorable conditions. He made the following elections: * he requested consideration of his case by an administrative separation board and a personal appearance before the administrative board * he acknowledged he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him * he understood that up until the date of separation authority orders, directs, or approves his separation, withdraw his waiver and request that an administrative board hear his case * he understood he may be ineligible for many or all benefits as a veteran both under Federal and State laws * he is ineligible to enlist/reenlist in the Army for two years (2) after discharge h. On 18 April 1993, the immediate commander initiated separation action against the applicant. He stated that the applicant was charged with drunken driving and fleeing the scene of an accident on 22 May 1992; assault by offer and conduct unbecoming an NCO on 29 July 1992; and receipt of a General Officer Letter of Reprimand on 3 September 1992. The intermediate commander recommended approval with a general discharge. i. On 18 June 1993, an administrative separation board convened at Headquarters, 1st Armored Division in Germany and found the allegations against him were supported by the preponderance of the evidence and that he was applicant undesirable for further retention in the military service. The board recommended his separation with a general discharge, under honorable conditions. j. On 12 July 1993, the separation authority approved the administrative separation board’s findings and recommendation, and ordered the applicant discharged under the provisions of AR 635-200, Chapter 14-12c for commission of a serious offense. He further ordered the applicant's service be characterized as general, under honorable conditions. k. On 12 August 1993, the applicant was discharged from active duty under the provisions of AR 635-200, para 14-12c (Misconduct-Commission of a Serious Offense). His DD Form 214 (Certificate of Release for Discharge from Active Duty) shows he completed 5 years and 5 months of active service. It also shows and he was awarded or authorized: * Southwest Asia Service Medal with Bronze Service Star-2 * Kuwait Liberation Medal * Army Commendation Medal * Army Achievement Medal (2nd Award) * Good Conduct Medal (5th Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon with Number 2 * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 3. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 4. In reaching its determination, the Board can consider the applicants 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 considered this service record, the frequency and nature of his misconduct and the reason for his separation. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct. 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 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 24 February 1977 until 16 October 1991.” 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. 8/8/2019 X CHAIRPERSON Signed by: 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 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 (Commission of a Serious Offense) 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. 4. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). //NOTHING FOLLOWS//