ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20180000214 APPLICANT REQUESTS: upgrade his general discharge under honorable conditions to honorable. 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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, at the time of his discharge, he was a younger person who made some mistakes. However, he believes the majority of his enlistment was honorable. 3. The applicant's service record shows: a. He enlisted in the Regular Army on 21 October 1986. Following initial training, the applicant was assigned to Fort Carson, CO; he arrived on or about 3 March 1987. Effective 1 May 1987, he was promoted to private(PV2)/E-2. He was promoted to private first class (PFC)/E-3 in or around October 1987. b. On 24 April 1988, the military police stopped the applicant's vehicle because it did not have a Post registration sticker; after noting the smell of alcohol, the applicant was administered and failed a field sobriety test. c. On or about 11 May 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk on 24 April 1988 (Article 111). d. On 22 June 1988, a general officer gave the applicant a memorandum of reprimand (GOMOR) for misusing alcohol and unsafely operating a motor vehicle on 24 April 1988. The applicant elected not to submit statements in his own behalf; the imposing officer directed filing of the GOMOR in the applicant's local personnel file. e. On 9 August 1988, he accepted NJP for drinking while on Charge of Quarters duty (Article 112). f. On 11 August 1988, civilian police arrested the applicant for driving under the influence and leaving the scene of an accident after striking an unattended vehicle. Effective 14 August 1988, the applicant was reduced from PFC to PV2. On 15 August 1988, the Garrison Commander suspended the applicant's on-post driving privileges. g. On 1 December 1988, his Fort Carson commander informed the applicant via memorandum of his intent to separate him under the provisions of paragraphs 14-12b (A Pattern of Misconduct) and 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The reasons were the applicant's established pattern of misconduct, which consisted of numerous failures to report for duty at the time prescribed and drinking on duty. In addition, the applicant had committed serious offenses (fleeing the scene of an accident and two incidents of drunk driving). h. On 1 December 1988, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the contemplated separation action, and he understood its effects, the rights available to him, and the effect of waiving those rights. He elected to waive his rights and chose not to submit statement in his own behalf. i. On 2 December 1988, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions. He was discharged accordingly on 9 December 1988 under the provisions of paragraph 14-12b (A Pattern of Misconduct), AR 635-200. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. 4. The applicant acknowledges he made mistakes during his military service, but contends the majority of his term of service was honorable. Under paragraph 14-12b, commanders were to consider Soldiers for separation when they exhibited a pattern of misconduct that was discreditable in nature and/or was prejudicial to good order and discipline. Separation based on serious misconduct (paragraph 14-12c) involved offenses where the Uniform Code of Military Justice (UCMJ) authorized a punitive discharge for the same or similar violation. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. (1) Paragraph 14-12b stated members were subject to separation under this provision when they had a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and/or conduct that were prejudicial to good order and discipline. (2) Paragraph 14-12c stated the commission of a serious military or civilian offense could be a basis for separation when the specific circumstances of the offense warranted such separation, and the UCMJ authorized a punitive discharge for the same or similar offense. (Per the UCMJ, a bad conduct discharge was included as a maximum punishment for violations of Article 111 (Drunken Driving) (when there were no personal injuries); Article 112 (Drunk on Duty); and Article 134 (General Article – Fleeing the Scene of an Accident). 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 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. 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) AR20180000214 3 1