ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170013703 APPLICANT REQUESTS: an upgrade of his 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. The applicant states he was having marital problems at the time. His former wife was an alcoholic and having affairs during the marriage. Her drinking and infidelity caused the applicant several embarrassing issues on the military installation where they resided. As he dealt with the stress of her infidelity and alcoholism, he made poor decisions that adversely affected his military duties and lead to early separation. He has been discharged from the military for 30 years now and has been a model citizen. He has had no legal issues since leaving the military. 3. A review of the applicant's service record shows: a. He enlisted into the Regular Army on 3 December 1982, and extended for 19 additional months on 27 March 1984. b. He served in Alaska from 29 June 1984 to 28 June 1987. c. He accepted nonjudicial punishment (NJP) under Article 15 for: * 6 June 1986, failing to be in company formation at 0616 hours * 13 November 1986, stealing United States currency the property of Sergeant H. and with intent to defraud; his punishment in part, reduction to grade E-4, * 15 January 1987, failing to go at the time prescribed to appointed place of duty; his punishment in part, reduction to E-2 d. On 15 January 1987, 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 and could result in discharge from active duty to a reserve component e. On 20 January 1987, the applicant he consulted with legal counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14. He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than under honorable conditions (general). He acknowledged: * he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he understood that, as the result of issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life * he understood that if he received a discharge/character of service which is less than honorable, he could apply to the Army Discharge Review Board or the Army Board Correction of Military Records for upgrading; however, he understood that an act of consideration by either board does not imply that my discharge will be upgraded f. On 13 February 1987, his commander initiated a Bar to Reenlistment Certificate against him. He cited the applicant's theft of U.S. currency, his failure to be at his appointed place of duty, and his failure to show up for formations. g. The commander initiated separation action against the applicant for misconduct - pattern of misconduct . He cited the applicant's consistent misconduct and disrespect toward noncommissioned officers. He also stated the applicant had received numerous Article 15 violations to include a forgery and larceny charge. The chain of command recommended approval. h. On 6 March 1987, the separation authority approved the conditional waiver and ordered the applicant discharged under the provisions of chapter 14 of AR 635-200 for misconduct and issued a General Discharge Certificate. i. On 20 March 1987, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 14 paragraph 14-12b, for misconduct (pattern of misconduct) with under honorable conditions discharge characterization of service. He completed 4 years, 3 months, and 18 days of active service with no lost time. He was awarded or authorized: * Army Service Ribbon * Noncommissioned officer professional development Ribbon Level I * Good Conduct Medal * Army Commendation Medal * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 4. By regulation, (AR 635-200), action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history). 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a, (Honorable) a 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 other characterization would be clearly inappropriate. b. Paragraph 3-7b, (General) provides that a general discharge is a separation from the Army under honorable conditions. When authorized it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty. c. Paragraph 14, establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without-leave. Action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. d. Paragraph 14-12b (2), (Pattern of Misconduct) says that Soldiers are subject to separation per this section for conduct prejudicial to good order and discipline includes: conduct violate of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army . e. Paragraph 14-2c (2) Abuse of illegal drugs is serious misconduct. 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) AR20170013703 3 1