ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170013688 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions 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. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 October 1985. He reenlisted on 28 December 1987. b. He served in Germany from 25 August 1988 to 21 March 1990. c. He received nonjudicial punishment under Article 15 on 17 November 1989, for operating a vehicle/passenger car while impaired by alcohol. His punishment included reduction to private first class/E-3. d. On 6 February 1990, the applicant's commanding officer notified the applicant that he would be recommending his separation under the provisions of Army Regulation (AR) 635-200, (Personnel Separations - Enlisted Personnel), paragraph 14-12b for a patterns of misconduct, and that the proposed separation could result in a characterization of service of under other than honorable conditions. The commander stated the reasons for the proposed action were that the unit's sensitive mission dictates only physically competent, responsible and reliable personnel are assigned and retained in the unit, the seriousness of the circumstances is such that his retention would have an adverse impact on military discipline, good order and morale; and your ability to perform duties effectively in the future, including potential for advancement or leadership is unlikely. e. On 6 February 1990, he was advised by counsel of the basis for the contemplated action to separate him for commission of a pattern of misconduct Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions was issued to him * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge * statements in his own behalf were submitted by the applicant f. He submitted a statement that states in part, he received the driving under the influence (DUI) due to a misunderstanding of the law and lack of financial support to obtain a lawyer. He acknowledged he had a drinking problem and had known so from treatment at Fort Bliss, TX. g. The commander initiated separation action against the applicant for misconduct - pattern of misconduct. He cited the applicant had a long history of alcohol abuse and a pattern of misconduct stemming from the abuse. He had ignored counselling, punishment and attempts to rehabilitation. h. On 23 February 1990, consistent with the chain of command recommendation, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, and paragraph 14-12b for patterns of misconduct. He would be issued a general discharge certificate. i. On 23 March 1990, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14-12b of AR 635-200 with a general, under honorable conditions characterization of service. He completed 4 years, 5 months, and 21 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Good Conduct Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification with Grenade Bar 4. By regulation, paragraph 14-12b states that a pattern of misconduct consisting of discreditable involvement with civil or military authorities. Conduct prejudicial of good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal 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 applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined partial relief is warranted. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a pattern of misconduct including an alcohol related criminal offense, and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 2. 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 3 October 1985 until 27 December 1987.” 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 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) 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 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. Paragraph 14-12b states that a pattern of misconduct consisting of discreditable involvement with civil or military authorities. Conduct prejudicial of good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time honored customs and traditions of the Army. 3. 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). 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) AR20170013688 6 1