IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170018106 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. On 26 August 1986, the applicant enlisted in the Regular Army for a period of 4 years. 3. On 20 February 1986, in recognition of his superior academic achievement, he was the “Honor Graduate” of the U.S. Army Photographic Applications Course. 4. During the period of June to July 1986, he was counseled on multiple occasions for: * post traffic violations * writing a bad check * not shaving before commander’s inspection * failing to appear in court * failing to return a television to the retailer (“TV Time”) 5. On 8 July 1986, a Report of Mental Status evaluation indicated he had the mental capacity to understand and participate in separation proceedings. He was also medically cleared for administrative separation. 6. On or about 21 July 1986, he was barred from reenlisting in the Army for: * failing to pass room inspections * failing to appear in court * failing to pay debts * failing to report to his place of duty * showing a poor attitude and poor work performance 7. On 4 August 1986, his commander notified him of his intent to initiate separation action against him for a pattern of misconduct under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b (pattern of misconduct). The reason(s) for the proposed action were based on receiving multiple counseling statements for misconduct, and failing to improve his reliability, duty performance, and conduct. The applicant refused to sign the notification. 8. On 7 August 1986, the applicant consulted with counsel and was advised of the basis for the contemplated action to separate him for a pattern of misconduct under the provisions of AR 635-200, paragraph 14 and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. 9. He provided statements in his own from the Deputy of Public Affairs and Chief of Outpatient Pharmacy stating that, the applicant served as photographer for the Madigan Public Affairs Office (PAO) from May 1986 to July 1986. He provided valuable photographic coverage for the PAO, something the Deputy PAO was very grateful for. Without the applicant’s expertise, the PAO would not have been able to perform some of its missions during this period. The applicant performed satisfactorily, promptly, and efficiently. 10. On 18 August 1986 consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge based on a pattern of misconduct, and directed the issuance of General Discharge Certificate. 11. On 26 August 1986, the applicant was discharged accordingly. He completed 1 year, 7 months, and 19 days of net active service. He was not awarded a personal decoration. 12. Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. The regulation also provides that 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 acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate. 13. In reaching its determination, the Board can consider the applicant's petition and his service record, in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. b. 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 acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate. 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. a. 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 on the basis of 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. b. 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// ABCMR Record of Proceedings (cont) AR20170018106 4 ABCMR Record of Proceedings (cont) AR20170018106 1