ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170018761 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) 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 has worked through VA programs successfully and is receiving psychiatric assistance. 3. On 21 March 1989, after having previously serving in the U.S. Army Reserves from 9 October 1987 to 30 October 1988, the applicant enlisted in the Regular Army. A review of his record shows: a. His first duty assignment as Fort Hood, TX; while assigned he was deployed to Saudi Arabia from [910110 to 910401] and was awarded the Southwest Asia Service Medal with two Bronze Stars and the Kuwait Liberation Medal. The highest rank he achieved was Specialist (SPC) on 1 July 1990. b. While stationed at Fort Hood, the applicant received: * On 29 August 1991, a Field Grade Article 15 for wrongful use of cocaine * On 27 November 1991, a Letter of Reprimand for having a female in his barracks room 4. On 30 October 1991, the applicant’s immediate commander initiated a Bar to Reenlistment against the applicant. The immediate commander mentioned the wrongful use of cocaine. 5. On 13 January 1992, the applicant’s immediate commander notified him that he was being recommended for separation in accordance with AR 635-200, Chapter 14 for pattern of misconduct and serious misconduct. The applicant acknowledged the command’s intent to discharge him for patterns of misconduct and serious misconduct, acknowledged his available rights and spoke with legal counsel. He consulted with legal counsel and was advised his available rights and the basis for discharge under the provision of Army Regulation 635-200, chapter 14.  He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He submitted statements in his own behalf that states in the effect: a. He does not abuse drugs or alcohol and was unaware that any substance was present in his system. b. There was no visitation policy before the Letter of Reprimand was given; his incident is why the policy came about. c. He should not have been given the letter of reprimand. He recovered as a soldier and should have been allowed to reach is goals. 6. The appropriate separation approved the separation issuing the applicant and under honorable conditions (general) discharge and waived rehabilitation according to AR 635-200 Para 1-18. 7. On 25 February 1992, he was discharged accordingly, his service was characterized as Under Honorable Conditions (general) for misconduct. His DD 214 shows he completed 2 years, 11 months and 5 days of total active service; and reflects the award and decorations: National Defense Service medal, Army Service Ribbon, Southwest Asia Service Medal with 2 Bronze Stars, Kuwait Liberation Medal, and marksman for the M-16 rifle. 8. On 9 May 1997, the applicant submitted a request to have his discharge changed to the Army Discharge Review Board and the board stated to the effect: After careful consideration of his military records and all other available evidence, has determined that he was properly and equitably discharge and his change in character and or reason of discharge was denied. 9. AR 635-200, Chapter 14 separates members who demonstrate or display patterns of misconduct, as evidenced by his multiple instances of misconduct and a bar to reenlistment. Paragraph 1-18 states, “Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member.” 10. AR 601-280, Chapter 6 Army Reenlistment Program prescribes procedures to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted, but whose reentry into, or service beyond ETS with, the Active Army is not in the best interest of the military service. Policies and procedures prescribed herein apply to the field commander's bars to reenlistment Soldiers may not be reenlisted without the recommendation of the unit commander. 11. The available evidence shows the applicant was serving successfully until post deployment, where he received a letter of reprimand for having a female in the barracks and NJP for wrongful use of cocaine, which, during the separation process, the applicant stated he was unaware he had the substance in his system; His record is void of the unit prevention testing results and the available evidence does not provide the level/amount of cocaine he tested positive for. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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 misconduct and the characterization of service of the discharge relating to that misconduct, the Board concluded there was no injustice or error that required making a change to the record. 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 1-18 states that commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member b. Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, character and behavior disorder, and apathy. The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. 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. ABCMR Record of Proceedings (cont) AR20170018761 0 3 1