ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20170016139 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. 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 a great Soldier the first three years of his service. He unfortunately became addicted to crack cocaine and began to do things he normally would not do. He states it was a terrible ordeal being addicted. Under the influence of drugs his behavior was unbecoming as a Soldier. He is truly ashamed the trouble he caused the military. He apologizes for all of his poor decisions. He is currently a clean person, no alcohol or drugs of any kind. He is gainfully employed with a great organization. He has started his own business. He asks for the Army’s forgiveness and that his discharge be changed. He has been out of the military for a number of years and realizes that he made a mistake and would like to make corrections. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 29 September 1986. b. He served in Germany from 3 March 1987 to 22 February 1989. c. He received a letter of reprimand on 29 November 1989 for assault and battery on Specialist (SPC) X___. d. A Bar to Reenlistment Certificate was approved on 7 March 1990 for receiving letter of reprimand and being subject of serious incident report. a. e. On 5 July 1990, court martial charges were preferred against the applicant for: * one specification of burglary and larceny of various audio and video components and computer equipment * one specification stealing various audio and video components and computer equipment the property of SPC X___ * one specification of stealing a 1980 Ford Thunderbird the property of SPC X___ * one specification of stealing a stereo system and components the property of SPC X___ * one specification of unlawfully breaking and entering the room of SPC X___ with intent to commit larceny therein * one specification of wrongfully receiving various audio and video components and computer equipment the property of SPC X___ * one specification of wrongfully and unlawfully making a false statement f. On 10 October 1990, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge g. On 18 October 1990, consistent with the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. h. On 19 October 1990, the applicant was discharged under the provisions of Army Regulation(AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service – in Lieu of Court Martial). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years and 17 days of active service. It also shows he was awarded or authorized; a. * Army Service Ribbon * Army Achievement Medal * Good Conduct Medal (1st Award) * Overseas Service Ribbon i. On 13 May 1996, the applicant applied to the Army Discharge Review Board and, the board denied his request. 5. By regulation, AR 635-200, Soldier who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 6. In reaching this determination, the Board can consider the applicant’s petition and 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 for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement, his service record, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found that he was remorseful to a certain extent, but found he did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of a clemency determination. The Board found insufficient evidence to overcome the severe nature of the applicant's misconduct that included multiple offenses of a criminal nature. Based on a preponderance of evidence, the Board determined that the applicant's discharge characterization was warranted as a result of the misconduct; there was no evidence of error or injustice. 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. 7/17/2019 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, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The 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. 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 10 of that regulation states a Soldier who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 4. 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//