ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170014005 APPLICANT REQUESTS: an upgrade to his under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DeVry University Unofficial Transcript * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Applicants Certification of Birth * Copy of Applicants Florida Drivers License * Copy of Applicants Social Security Card 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 after being discharged from the military in 1985, he raised four children and was married for 24 years. He is now a single father and has been an outstanding citizen with no criminal record or issues. He has also completed his Associates Applied Science in Network System Administration from DeVry University. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 September 1983. b. On two occasions, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice: * 17 August 1984 – wrongfully possess and use of some amount of marijuana in the hashish form. His punishment consisted of reduction to the lowest rank private (PVT)/E-1 suspended until 1 December 1984,forfeiture of $50.00, 14 days restriction and extra duty to begin 17 August 1984 * 20 February 1985 – committing an indecent assault on another person. His punishment consisted of reduction to private (PV2)/E-2,forfeiture of $162.00 for one month, 14 days restriction and extra duty c. On 10 July 1985, the applicant's commander advised him in writing of his intent to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct). The commander's reasons were the applicant's previous misconduct addressed by his two NJP actions; use of hashish, and pattern of misconduct. d. On 11 July 1985, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for this action, his available rights, and the effect of waiving those rights. He elected not to make a statement in his own behalf. e. On 30 July 1985, consistent with the chain of command recommendations, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 12 August 1985, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 11 months and 6 days of his 4-year enlistment. He was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Expert Badge with M-16 Rifle Bar * Sharpshooter Badge with Hand Grenade Bar * Expert Badge with 45 Caliber Pistol Bar. 4. By regulation, 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. 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 relief is not 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 criminal offenses, 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. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 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 on the basis of 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) AR20170014005 4 1