ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20170016452 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) 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: a. He would like to purchase insurance from USAA, but he must have an honorable discharge. He would also like to get a job that would require him to have an honorable discharge. b. In addition, he is in the CWT program at the Veterans Administration (VA) hospital in Jackson, Mississippi and he is trying to get gainful employment to take of himself. The VA has great placement opportunities in the workforce community in Jackson. He is asking for this upgrade to his DD Form 214 to better himself and to provide for his family. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 5 August 1992. b. He accepted nonjudicial punishment on/for: * 11 January 1994 for committing an assault on another Soldier he received no punishment * 20 October 1994 for wrongful use of cocaine his punishment included reduction to E-1 and 45 days extra duty c. On 10 November 1994, his immediate commander notified he applicant that he was initiating a separation action against him under the provisions (UP) of Army Regulation (AR) 635-200, paragraph 14-12(c). The reason for the proposed actions was for testing positive for cocaine in a urine sample submitted on 20 September 1994 and committing a serious offense of assault consummated by a battery. He also acknowledged receipt of this action. d. On 29 November 1994, he requested for an conditional waiver. He waived his rights contingent upon him receiving a characterization of service of description of separation no less favorable than under honorable conditions otherwise referred to as a General Discharge. He consulted with legal counsel and was advised the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he would submit a statement in his own behalf * he waived his right to have his case considered by an administrative separation board * he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service discharge would be upgraded e. The applicant submitted a rebuttal letter on 2 December 1994, which states he was sorry for the incident that led to him being chaptered. He was under a lot of personal stress at the time. His goals regarding his Army career have always been to do the very best job professionally that he could and gain as much education as possible, so that he would be a more productive Soldier and citizen. He received three certificates of Achievements during his Advanced Individual Training, which only few Soldiers have achieved. He asked to remain on active duty in the Army that he loved (please see attached statement). f. On 29 March 1995, consistent with the chain of command recommendations, the approval authority approved the separation UP the provision of AR 635-200, 12-c, and issued an General Under Honorable Conditions Discharge Certificate. g. The applicant was discharged from active duty on 4 April 1995. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c with a General Under Honorable conditions characterization of service. He completed 2 years and 8 months. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Sharpshooter Marksmanship Qualification with Hand Grenade Bar. 4. By regulation, separations under the provisions of 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. 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 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 violent nature of the misconduct which led to the applicant’s separation, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization 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. 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. All Soldiers must be processed for separation after a second offense. b. Paragraph 3-7a (Honorable Discharge) 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. c. Paragraph 3-7b (General Discharge) 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. 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 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. ABCMR Record of Proceedings (cont) AR20170016452 0 4 1