ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20170015854 APPLICANT REQUESTS: an upgrade of his discharge from other than honorable conditions 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, that he was attacked by an Army officer out of military uniform. * was under influence at the time and defended himself * did not know the person was an officer at the time * suffers from mental health issues and alcohol problems that stem from Desert Storm 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 20 April 1989. b. He served in Korea from 14 October 1991 to 13 October 1992. c. The complete facts and circumstances surrounding his discharge are not available for review. However, other source documents show: (1) On 24 March 1992, physician assistant authored a memorandum for record stating that the applicant arrived at the aid station in emotional distress. He stated he was unable to work due to profile. On 28 February 1992, the applicant was observed consuming alcohol while taking flexeril. On 2 March 1992, he requested more pain medication, but was denied by medical staff. (2) DA Form 4126-R (Bar To Reenlistment Certificate), dated 27 March 1992, he was notified of bar to reenlistment was initiated against him. He acknowledged receipt. The bar indicates the applicant had difficulty in adhering to regulations and standing operating procedures. He repeatedly displayed a negative attitude toward his work and his superiors. This is evidence by his numerous counseling for misconduct and unethical behavior. (3) CID (Criminal Investigations Division) report dated 27 March 1992 titled applicant for Damage to Government Property, Larceny, and Housebreaking. The report stated the applicant forced open the secured door to a room in a building, damaging the locking mechanism. Once inside he stole $2,420 from the top drawer of another Soldier's three drawer chest (4) DA Form 3881 (Rights Warning Procedure/Waiver Certificate) Shows he was advised of his rights on 28 March 1992 but declined to waive his rights. (5) DA Form 3822-R (Report of Mental Status Evaluation), dated 30 July 1992, wherein a psychiatrist states the applicant was mentally responsible for his behavior. He had a history compatible with alcohol abuse and should be referred to alcohol and drug abuse prevention and control program. (6) Orders 287-05, dated 13 October 1992, ordered his separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). (7) DD Form 214 (Certificate of Release or Discharge from Active Duty), that show she was discharged on 21 October 1992, under the provisions of AR 635-200, chapter 14-12(c), with a general, under honorable conditions characterization of service. The reason for separation was “misconduct-commission of a serious offense.” 4. By regulation, categories of misconduct included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A under other than honorable conditions discharge was normally appropriate for a Soldier discharged for misconduct - commission of a serious offense. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 5. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. 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 multiple violations of the UCMJ, some of a very serious nature, and a lack of demonstrated growth by the applicant since those events, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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 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), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A general discharge was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. 3. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. c. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation • Availability of other remedies • Job history • Whether misconduct may have been youthful indiscretion • Character references ABCMR Record of Proceedings (cont) AR20170015854 4 1