ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2019 DOCKET NUMBER: AR20170018997 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions, discharge to an honorable 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 since his discharge he has completed the course requirements for his Computer Information Management Certification, to include other studies in criminal justice. He is currently employed as a telecommunication engineer for a large reputable engineering firm. He has served in the capacity as a sworn law enforcement officer for the State of Georgia. His character and conduct represented the U.S. Army well. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 19 August 1987. He served in Korea from 10 January 1988 to 6 October 1989. b. He received counseling on 17 February 1988, for leaving his place of duty and being late for formation. c. He accepted nonjudicial punishment (NJP) on 1 and 3 April 1988 for wrongfully and intentionally obtaining telephone service and violating a lawful regulation. d. On 16 November 1988, he was barred from reenlistment. The commander cited the following reasons: a. * violation of general regulations * multiple Article 15s * several dishonored checks * history of indebtedness * history of being late to formations * history of failing to be at his appointed place of duty e. He received counseling on 21 November 1988, for an approved bar to reenlistment. f. On 19 December 1989, the applicant’s commander recommended the applicant’s bar to reenlistment be removed as a result of his outstanding overall duty performance and soldierly attitude. The request was approved on 21 December 1989. g. He was promoted to pay grade E-4 on 1 January 1990. h. He was honorably discharged on 16 January 1990, for his immediate reenlistment. He reenlisted in the RA on 17 January 1990. i. He received counseling on/for: * 13 March 1990, decline in work habits and attitude * 9 April 1980, noncompletion of a 920 Roster * 13 April 1990, being disrespectful to a noncommissioned officer (NCO) j. He accepted NJP on 10 May 1990, for being disrespectful to an NCO. His punishment consisted of reduction to E-3 (suspended for 6 months) k. On 3 August 1990, his immediate commander notified him of proposed separation action under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12, for minor disciplinary infractions. l. On 6 August 1990, he consulted with legal counsel. He was advised of the basis for the contemplated action to separate him for misconduct. m. He elected to make a statement on his own behalf. In his statement, dated 14 August 1990, he stated that a chapter 14 discharge would undoubtedly leave a bad mark on him for life. He had learned from his mistakes and he felt that he had matured a lot from his experience. n. On 26 August 1990, his immediate commander stated that the decision to initiate the recommendation for the administrative elimination of the applicant under chapter 14 was taken after a comprehensive review of his total service. Subsequent to his reenlistment, he soon reverted to his old habits. a. o. On 23 August 1990, his immediate commander recommended his separation in accordance with paragraph 14-12a of AR 635-200. p. On 24 August 1990, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 and directed the issuance of a General Discharge Certificate. q. On 31 August 1990, he was discharged from active duty under the provision of AR 635-200, chapter 14 (Misconduct - Pattern of Misconduct). He completed 3 years, 11 months, and 12 days of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded/authorized: * Army Service Ribbon * Overseas Service Ribbon * Arm Good Conduct Medal 4. By regulation, misconduct includes 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 absence 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. 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 short term of military service completed prior to a pattern of UMCJ misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/8/2019 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 14-12b, members were subject to separation under this provision for a pattern of misconduct. A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found, in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier s overall record. b. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge would be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age length of service, grade and general aptitude. c. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. When a member’s service was characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. 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, 1. 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.