ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170012429 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Support letter from HS, dated 2 May 2017 * VA Form 21-4138, Statement in Support of Claim, dated 16 May 2017 * Support letter from MD, dated 19 May 2017 * 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 the Board should take into consideration the character of his military service prior to his separation and the attached statements supporting his character. He has been paying for his mistake ever since he was discharged. In addition to losing his rank and being discharged from the Army also that year his wife moved out and took the kids. Although they are still married and he would do anything for his family, they have been separated ever since. Every time he applied for a good job they ask about his military service and the character of his discharge. Once they see his DD Form 214 and he has to explain the events that took place he is not offered the position. Now recently, he applied for health care from the VA to treat his medical condition and once again his stupid mistake showed its ugly face and he was turned down for benefits. He is writing this statement in hopes that whoever reads it will be able to help him receive the medical assistance he needs. He is now 49 years old and although he understood the reason for discharge in 1992, he did not fully understand how this would impact the rest of his life and he has only just now discovered the possibility that his DD Form 214 can be upgraded. 3. The applicant provides: a. Support letter from HS, dated 2 May 2017, stating the applicant has not had any criminal encounters with the police department in the town of Baldwin where he resides. b. VA Form 21-4138, Statement in Support of Claim, dated 16 May 2017, stating the applicant has been a resident of Baldwin for the majority of his life. He has always been a respectful young man. Hopefully, whatever his needs are she prays that the Board can assist him, so that he can once again become a productive young man in the community. c. Support letter from MD, dated 19 May 2017, stating he has known the applicant practically all of his life. He is always willing to lend a hand when needed. He volunteered his time to cook for a community event that his company hosted during Mardi Gras. He has a very pleasant personality and is a very skilled cook. That is just one of the many times he has shown his dedication to the community in which he resides. The applicant’s values are respected and his life in the community has been an example of what he thinks his should be. d. DD Form 214 which shows he was discharged under other than honorable conditions on 10 July 1992 for the good of the service. 4. A review of the applicant’s service records shows the following: a. Having had prior service, he enlisted in Regular Army on 3 December 1986, subsequently reenlisting on 27 April 1989. b. DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 17 June 1992. He was charged with one specification of wrongful use of cocaine between on or about 17 and 24 March 1992. c. He consulted with legal counsel on 22 June 1992 and subsequently requested discharge under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * if his discharge request is accepted, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge d. On 24 June 1992, his immediate and intermediate commander recommended approval with issuance of a general discharge. e. On 2 July 1992, the separation authority approved the applicant’s request for discharge for the good of the service and directed his service be characterized as under other than honorable conditions. He would be reduced to private/E-1. f. On 10 July 1992, he was discharged UP of AR 635-200, Chapter 10 under other than honorable conditions in the rank of private/E-1. He completed 5 years, 6 months, and 29 days of active service. He was awarded the Army Service Ribbon, National Defense Service Medal, South West Asia Service Medal with 2 bronze service stars, Saudi Arabia Kuwait Liberation Medal, Army Achievement Medal 3rd oak leaf cluster, Army Good Conduct Medal, Overseas Service Ribbon, and Non-commissioned Officer Professional Development Ribbon. 5. By regulation, Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and letters of support 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. However, the Board agreed court-martial charges were too severe for one confirmed use of an illegal drug. Based upon his acceptance of responsibility, character references, and the length of time since the misconduct, the Board determined an Under Honorable Conditions (General) Discharge is appropriate in this case. Additionally, the Board noted that the applicant had a prior period of honorable service which is not currently depicted on his DD Form 214. Therefore, the Board recommended making that change as well to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X :X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 10 July 1992 showing his characterization of service as under honorable conditions (General). 2. The Board also recommended 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 3 December 1986 until 26 April 1989.” 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 635-8 (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). 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a(1) 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) 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. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 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 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) AR20170012429 4 1