ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20170012810 APPLICANT REQUESTS: an upgrade to his other than honorable 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 (ABCMR) 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. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (RA) on 19 February 1982. He reenlisted in the RA on 1 February 1985. On 1 April 1985, he completed DA Form 1695 (Oath of Extension of Enlistment). ` b. He served in Germany from 24 June 1985 to 23 June 1988. His DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignment) General Discharge with the effective date of 2 December 1991. c. Translation of Court Judgement, final session on 13 July 1987, shows that the applicant was charged with negligent homicide and other offenses by the German court. The court found the applicant guilty of negligent homicide in conjunction with negligent bodily injury in three instances and of intentionally endangering road traffic. The applicant was sentenced to 2 years and 4 months confinement. It further states that his permission to drive shall be withdrawn and a new permission to drive shall not be issued prior to expiration of a period of 4 years. The applicant will bear costs of the proceedings as well as all costs incurred by all interveners. d. Trial Observer Report, dated 3 September 1987, states that under all the facts and circumstances, the accused received a fair trial. The report details the circumstances surrounding the court proceedings and charges against the applicant. It also includes statements made at trial by the, prosecution, the accused, and defense council. The report is comprised of a total of 9 pages. e. On 15 November 1991, the applicant was notified of his commander’s intent to separate him under the provisions of AR 635-200 (Personnel Separations- Enlisted Separations), chapter 14-9a (Civil Court in Foreign Countries) with an under other than honorable discharge for negligent homicide. f. On 15 November 1991, the applicant was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense, under the provisions of AR 635-200, chapter 14-9a, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understands that if he has six years of total active and reserve military service at the time of separation under AR 635-200, chapter 14, paragraph 14-9a, he is entitled to have his case heard by an administrative separation board. * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under other than honorable conditions * he will be submitting statements on his own behalf * he understood that he may encounter substantial prejudice in civilian life if a general under honorable conditions is issued. g. On 18 November 1991, letters of character were submitted on the applicant’s behalf from members of his unit, friends and acquaintances. h. On 24 October 1989, the applicant’s immediate commander submitted a request to have him held beyond his expiration-term of service pending trial by the host nation. i. Orders 336-0182, dated 2 December 1991, discharge the applicant from active duty effective 2 December 1991. The applicant’s character of service is not indicated on the orders. j. He was discharged from active duty on 2 December 1991 with an under other than honorable discharge for civil conviction. His DD Form 214 (Certificate of Release or Discharge from Active Duty) under the provisions of AR 635-200, chapter 14-9a (Civil Court in Foreign Countries). It also shows that he completed 8 years, 6 months, and 16 days of active duty service. 3. AR 635-200, chapter 14-9a, state that discharge of members convicted by a foreign tribunal may be approved by major oversea commanders. This authority may be delegated to a general officer with a JAG (Judge Advocate Group) on his or her staff. Every action taken in such delegation will state the authority. When a member is convicted by a foreign tribunal, and the member returns to the United States before the initiation or completion of discharge proceedings per this paragraph, discharge proceedings will be initiated or completed per paragraph 14-5. 4. 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. 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 relief was not warranted. Based upon the serious, criminal nature of the misconduct which led to the applicant’s discharge, the Board concluded that the characterization of service received at the time of separation was appropriate. However, the Board noted that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that be corrected to more accurately reflect 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 19 February 1982 until 31 January 1985.” 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 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 14-9a, state that discharge of members convicted by a foreign tribunal may be approved by major oversea commanders. This authority may be delegated to a general officer with a JAG (Judge Advocate Group) on his or her staff. Every action taken in such delegation will state the authority. When a member is convicted by a foreign tribunal, and the member returns to the United States before the initiation or completion of discharge proceedings per this paragraph, discharge proceedings will be initiated or completed per paragraph 14-5. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170012810 3 1