ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170014415 APPLICANT REQUESTS: An upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * A personal appearance before the Board 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 that due to personality conflict, charges were trumped up. To his knowledge at the time he had accrued leave time. He was approved to go home for a few days, then found out that the leave was denied. He immediately returned and received an Article 15; barracks restriction and he was discharged. 3. He provides a self-authored statement wherein he states that he voluntarily joined the Army to serve his country. During his time in Fort Bragg he experienced personality conflicts with a couple of noncommissioned officers (NCO) that lead to his early dismissal from the Army. He received an Article 15 for being absent without leave (AWOL) for 5 days. He was given a verbal okay to take leave. He had accrued 9 days of leave and received permission from his squad leader that his leave was approved to go home to see his dad. He received a phone call while home in Texas that his leave was not approved and that he was considered AWOL. His dad put him on a plane and he returned to Fort Bragg to face his punishment. 4. A review of his service records shows the following: 1. a. Having had prior service in the United States Army Reserve, he enlisted in the Regular Army on 4 March 1986. b. DA Form 4187 (Personnel Action), dated 10 September 1986, reported the applicant AWOL on 8 September 1986. A second DA Form 4187, dated 11 September 1986, reported the applicant present for duty on 11 September 1986. c. He accepted nonjudicial punishment (NJP) on 19 September 1986 for being AWOL from 8 September 1986 until on or about 11 September 1986. His punishment included reduction E-1 (suspended until 3 March 1987). d. His service record contains seven counseling statements on various offenses: * overall performance counseling for 1 through 30 September 1986 * missed sick call appointment * absent from work * drunk and disorderly * absent without leave * falsely marked quarters on an individual sick slip for self * disobeying an NCO e. On 12 January 1987, DA Form 2627-2 (Record of Supplementary action under Article 15, Uniformed Code of Military Justice (UCMJ)) reports the suspension of the punishment of reduction to E-1 suspended until 3 March 1987, imposed on 19 September 1987 was vacated. The applicant failed to be at the appointed place of duty on 23 December 1986. f. He accepted NJP on 22 January 1987, he falsely checked the quarters block on a DA Form 689 (Individual Sick Slip). His punishment included restriction to the billets, mess hall, medical facilities, church and work for 14 days (suspended until 20 July 1987) g. A Bar to Reenlistment Certificate was approved on 9 February 1987 for receiving NJP. h. On 10 February 1987, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12b (pattern of misconduct). The commander requested waiver of further counseling and rehabilitative transfer in the case of the applicant. i. On 12 February 1987, DA Form 2627-2 reports suspension of the punishment to be restricted (suspended until 20 July 1987) imposed on 22 January 1987 was vacated for willfully disobeying a noncommissioned officer on or about 12 February 1987. a. j. On 12 February 1987, he consulted with legal counsel on the contemplated action to separate him for pattern of misconduct under the provision of chapter 14-12b, AR 635-200. He acknowledged: * he may submit a statement in his own behalf, he elected not to submit a statement * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he would be ineligible to apply for enlistment in the united states army for a period of two years after discharge k. On 18 February 1987, he received a medical examination and a mental evaluation for separation und AR 635-200, chapter 14 which stated that he had the mental capacity to understand and participate in the chapter proceedings. l. On 19 February 1987, his immediate commander initiated action to separate him under the provisions of AR 635-200, paragraph 14-12b (pattern of misconduct). m. Consistent with the chain of command’s recommendation on 4 March 1987, the separation authority approved the request for discharge under the provisions of AR 635- 200, paragraph 14-12b (pattern of misconduct) and directed that he receive a general discharge certificate. n. The applicant was discharged from active duty on 12 March 1987 under the provisions of AR 635-200, paragraph 14-12b (pattern of misconduct) and his service characterization is under honorable conditions (general). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year and 6 days of active service this period. Lost time 8 September 1986 through 10 September 1986. 5. By regulation, AR 635-200, chapter 14 provides 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. 6. 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. 1. 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 service completed prior to multiple AWOL offenses, the Board concluded that the characterizataoin of service received at the time of discharge was appropriate 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. 5/16/2019 X CHAIRPERSON Signed by: 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, 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 -12b states Soldiers are subject to separation when a pattern of misconduct consisting of discreditable involvement with civil or military authorities, conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative 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. 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 1. 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.