ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20170016594 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * AR20160000278 - Record of Proceedings dated 6 July 2017 * Deputy Assistant Secretary of the Army Memorandum dated 28 August 2017 * Response to Applicant dated 30 August 2017 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20080018090, dated 19 February 2009, and AR20160000278, dated 6 July 2017. 2. The applicant states on 6 July 2017, the Army Board for Correction of Military Records (ABCMR) unanimously recommended that his discharge be upgraded to general, under honorable conditions. The Board noted the unduly harsh discharge. The Deputy Assistant Secretary of the Army (DASA) disagreed. The applicant requests the DASA re-read the accompanying attachments and reconsider the decision. He looks forward to receiving the positive response and will not cease appealing. He served faithfully and honorably for 3 years, 11 months, and 10 days with no lost time. 3. The applicant provides: a. Record of Proceedings for Docket Number AR20160000278 dated 6 July 2017, which states the Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080018090, dated 19 February 2009. As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by voiding his current DD Form 214 and issuing him a new DD Form 214 showing his character of service as general, under honorable conditions. The Board recommended full relief be granted. b. A memorandum from the DASA, dated 28 August 2017, which stated after reviewing the findings, conclusions, and Board member recommendations, there was not sufficient evidence to grant relief. Additionally, the determination was made that the facts do not support upgrading the applicant’s discharge. c. A decision letter to the applicant, dated 30 August 2017, informing him that the Board members unanimously recommended full relief of his request; however, the DASA found there was insufficient evidence to grant relief. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 May 1984. b. He served in Germany from 9 February 1985 to 22 May 1988. c. He received nonjudicial punishment on/for: * 18 August 1986, wrongful use of marijuana; his punishment included reduction to private first class/E-3 * 28 July 1987, failure to go to his appointed place of duty d. On 7 April 1988, court-martial charges were preferred on the applicant for one specification of wrongful possession of some amount of amphetamine, for one specification of wrongful possession of drug paraphernalia, to wit: two packages of rolling papers, two rolling machines, and a smoking device, for two specifications of wrongful possession of prohibited items, to wit: two nunchakus and a butterfly knife with a 4 inch blade, one specification of false official statement, and one specification of dishonorably failing to pay a debt. He held the rank/grade of specialist/E-4. e. On 12 April 1988, after consulting with legal counsel he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635- 200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * he was guilty of a charge against him or of a lesser included offense * he does not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, * * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life f. On 26 April 1988, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted pay grade. g. On 4 May 1988, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 11 months, and 10 days of active service with no lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Hand Grenade 5. On 11 June 2003, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 6. By regulation, an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, record of service, multiple drug and other offenses, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for the misconduct and the absence of a statement of remorse from the applicant; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service the applicant received at the time of separation was not in error or unjust. 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. 9/10/2019 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority 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 10 of this regulation states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 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.