ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170013072 APPLICANT REQUESTS: upgrade his general under honorable conditions discharge to honorable 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 he was accused of robbery with a firearm but the charges were dropped. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 1 March 1989. b. He accepted nonjudicial punishment (NJP) on 13 October 1989 for without authority failed to go at the time prescribed to his appointed place of duty; the battalion S-3 office. c. On 25 October 1989, memorandum from the Fort Sill, OK Alcohol and Drug Control Officer advised that the applicant failed his self-referred alcohol abuse rehabilitation as of 23 October 1989. d. He accepted NJP on 30 October 1989 for; breaking restriction, without authority failed to go to at the time prescribed to his appointed place of duty; extra duty, absented himself from his unit from 21 October 1989 to 23 October 1989, and failed to obey a lawful general regulation and wrongfully drinking while under the age of 21. e. On 1 November 1989, the applicant received a mental health evaluation due to consideration for chapter 13 (Separation for Unsatisfactory Performance) separation. The evaluation found that the applicant did meet retention standards, diagnosed with alcohol and substance abuse, and psychiatrically cleared for administrative action. f. On 14 November 1989, the commander notified the applicant that separation proceedings had been initiated on him under the provisions of chapter 14, section III, AR 635-200 (Personnel Separations – Enlisted Separations) for acts or patterns of misconduct. The reasons for the recommendation of separations are (1) continuing unsatisfactory performance, (2) he was accused of petit larceny, carrying a concealed weapon and shoplifting, (3) absent without leave and failed to report to his place of duty. He was advised of his rights: g. On 14 November 1989, the applicant’s immediate commander recommended separation under provisions of chapter 14, section III, AR 635-200 and that he be furnished a general under honorable conditions discharge for patterns of misconduct. h. After consulting with a legal representative on 15 November 1989, he acknowledged the notification of the proposed separation. He acknowledged: * he may be ineligible to apply for enlistment in the U.S. Army for 2 years after discharge * he did not desire to consult with counsel * he did not desire to submit a written statement in his behalf * he did desire to obtain copies of documents sent to the separation authority * he did not desire a separation medical examination * he did waive in part rights that were indicated by his initials i. On 21 November 1989, the commander who imposed punishment on 30 October 1989 remitted (canceled) the unexecuted portion of the punishment. j. On 29 November 1989, the applicant’s battalion commander recommended him for separation under provisions of chapter 14, section III, AR 635-200 for patterns of misconduct and that he should be issued a general under honorable conditions discharge certificate. k. Consistent with the chain of command recommendations, the separation authority approved the separation on the applicant on 4 December 1989, under provisions of chapter 14, section III, paragraph 14-12b, AR 635-200 for patterns of misconduct. He ordered the applicant be furnished a General Discharge Certificate. l. He was discharged from active duty on 8 December 1989 with a general under honorable conditions characterization of service. His DD Form 214 shows he completed 9 months and 6 days of active service. It also shows he was awarded or authorized the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Grenade Bar. 4. By regulation (AR 635-200) Soldiers may be separated because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Soldiers are subject to separation for a pattern of misconduct consisting of (1) Discreditable involvement with civil or military authorities; or (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violated of the accepted standards of person conduct found in the UCMJ, Army regulations, the civil law and time honored customs and traditions of the Army. 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 honorable service completed prior to a pattern of misconduct, as well as the applicant already receiving a general discharge, the Board concluded that there was no error or injustice which would warrant making a change to the applicant’s characterization of service. 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. 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 Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any there 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 Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12b, states Soldiers are subject to separation per this section for the following; a pattern of misconduct consisting of (1) Discreditable involvement with civil or military authorities; or (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violated of the accepted standards of person conduct found in the Uniform Code of Military Justice, Army regulations, the civil law and time honored customs and traditions of the Army. A discharge under other than honorable conditions is normally appropriate for a Soldiers discharge under this chapter. However, the separation authority my direct a general discharge if such is merited by the Soldier’s overall record. 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) AR20170013072 4 1