ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170015712 APPLICANT REQUESTS: Applicant requests reconsideration of the previous submission by her late husband, a former service member (FSM), to upgrade his discharge of his under other than honorable conditions discharge to under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * DD Form 293 from the FSM’s spouse * Death Certificate (State of California) * Marriage Certificate (State of Rhode Island) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040003158 on 25 February 2005. 2. The applicant states her husband, recently died on 15 August 2017. He wished to change his military discharge status from other than honorable to general under honorable conditions. He sent his request in July 2017 to the wrong Army Review Board Agency address in error before he died. She has known her husband for almost 30 years. Although she is not certain to the circumstances that lead to his dishonorable discharge from the Army, she is certain that he truly believed that his discharge category should have been a general under honorable conditions. She believes that he should have been given an honorable discharge because he was a good man, who displayed a deep love for his country and utmost respect to anyone serving in the military. Her husband never mentioned to her that he wanted to request this Board to change his discharge condition. Her husband never mentioned to her the circumstances of his discharge other than that he was just “let go.” She knows, that had the military given him another chance, he would have had access to the same opportunities that Soldiers now have, such as access to the programs for treatment that the Army Alcoholism and Drug Abuse Program offers. He would probably have finished his military service honorably. She requests the Board consider an upgrade of her husband’s discharge status to honorable or general. In a previous application he stated he was a good Soldier during boot camp and advanced individual training. He enjoyed what he was doing, but drinking took over his life. He was young and had no direction from his superiors, no medical help as a result he kept drinking, not on duty, only after duty. This was a huge life lesson that he did learn from, always wishing that he never drank. He wanted to live the life of serving his country like he had initially planned to do. 3. The applicant provides: * DD Form 293 from the FSM prior to death * Death Certificate (State of California) which shows his date of death as 15 August 2017 * Marriage Certificate (State of Rhode Island) which shows X___. X___ was married to X__ X__ X__ X__ X__ on 1 July 1989 4. A review of the FSM’s service records shows the following: a. He enlisted in the Regular Army on 13 October 1982. b. He accepted non-judicial punishment on/for: * 17 June 1983, operate a vehicle while drunk, he was reduced to private/E-1 * 16 July 1983, operate a vehicle while drunk * 19 August 1983, without authority go from your place of duty c. On 5 July 1983, his immediate commander notified him that under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) chapter 14 (Separation for Misconduct), separation action from the service would be initiated against him for misconduct (commission of a serious offense), and advised him of his rights. d. The FSM consulted with counsel and acknowledged the following: * been advised of the basis for the contemplated action to separate him for misconduct under the provisions of AR 635-200, Chapter 14-12c, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights * he requested consideration of his case by a board of officers * statement on his behalf was not submitted * understood that his willful failure to appear before the board of officers by absenting himself without leave will constitute a waiver of his rights to personal appearance before the board * understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * understood that if he received a discharge certificate/character of service which is less than honorable, he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * understood that he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge e. On 7 July 1983, his immediate commander initiated separation for misconduct due to the FSM being picked up twice on driving while intoxicated charges, on 1 June 1983 and 4 July 1983. The commander stated that the FSM displayed no improvement as a result of counseling and non-judicial punishment and that he even broke restrictions and was again picked up for DUI. f. On 15 and 18 July 1983, his chain of command concurred with the recommended action and that he receive an under other than honorable discharge. g. On 8 August 1983, the separation authority directed a board of officers will be convened to determine whether the individual should be separated because of commission of a serious offense. h. On 1 September 1983, the FSM was notified that an investigation hearing will be conducted to determine whether he should be discharged because of misconduct. i. On 21 October 1983, the board of officers convened at Fort Riley, KS, and determined that there was substantial evidence of misconduct. In view of the findings, the board of officers recommended the he be discharged from the military service because of the misconduct and that he be issued an under other than honorable discharge. j. On 23 November 1983, the separation authority directed the FSM be discharged UP of paragraph 14-12c, AR 635-200 under other than honorable conditions. k. On 6 December 1983, he was discharged under other than honorable conditions for misconduct (commission of a serious offense) UP of AR 635-200 paragraph 14-12c. He completed 1 year, 1 month, and 24 days of active service. He was awarded the Marksmanship Qualification Badge (.45 Caliber Pistol) and the Army Service Ribbon. 5. On 2 March 2005, the FSM was notified that the Army Board for Correction of Military Records on 24 February 2005 determined that insufficient evidence has been presented to indicate probable material error or injustice, and the application was denied. 6. By regulation, AR 635-200, chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 7. 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 sufficient 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. The FSM received a UOTHC character of service resulting from a pattern of misconduct involving alcohol related offenses. The Board agreed to grant relief with an Under Honorable Conditions (General) discharge based upon the amount of time since the offense, and the severity of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20040003158 on 25 February 2005. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the former service member a DD Form 214 for the period ending 6 December 1983 showing his character of service as Under Honorable Conditions (General). 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. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 (Separation for Misconduct) deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. a. Paragraph 3-7a(1) 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) 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 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 2. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015712 5 1