ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180000407 APPLICANT REQUESTS: The applicant requests his under honorable conditions discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2 DD Form 214s (Certification Release of Discharge) * 4 DD Form 4s (Enlistment/Reenlistment Document) 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 was unjustly discharged and punished for his actions. He was charged with damage and misappropriation of government property for which he willingly admitted. He further states that since this incident, he has joined the reserve and served honorably. 3. On 3 February 1994, the applicant joined the Regular Army for a period of 5 years. 4. The applicant’s records are absent of a separation packet or other available evidence that shows specific reasons why he was discharged; however his DD Form 214 shows on 20 October 1995, he was discharged, his service was characterized as under honorable conditions (general). He completed 1 year, 8 months, and 10 days of net active service and 1 year 1 month Foreign Service. 5. On 31 March 2006, the applicant joined the Army Reserve and obtained 6 years of honorable service. 6. On 24 July 2009, the applicant was released from Active Duty due to completion of required active service. 7. The applicant reenlisted into the Army Reserve on 1 June 2011, and 27 April 2018. His DD Form214 from 24 February 2009 shows that he was awarded the Meritorious Service Medal, Army Good Conduct Medal, Army Achievement Medal, National Defense Service Medal with Bronze Star, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Iraq Campaign Medal with Campaign Star, Noncommissioned Officer Professional Development Ribbon, and he deployed to a designated imminent danger pay area. 8. Army Regulation 635-200 (Personnel Separations) provides for separation due to patterns of misconduct which is prejudicial to good order and discipline and provides rehabilitation is waived when the approval authority determines it would not be in the best interest of the Army and a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. 9. The applicant records shows that he was separated under the provisions of AR 635- 200, Chapter 14 for misconduct but was allowed to enlist into the Army Reserve where he has received multiple awards and has served honorably since the incident. 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements 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 that there is sufficient evidence to grant partial 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 found the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have mitigated the misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: After a full review of the application and record the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 ending 95-10-20 by: * item 24 (Characterization of Service): Honorable * item 25 (Separation Authority): AR 625-200, Ch 5 * item 26 (Separation Code): LFF * item 27 (Reentry Code): 1 * item 28 (Narrative Reason for Separation): Secretarial Authority ____________X____________ CHAIRPERSON 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, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A UOTHC discharge 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. d. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. e. Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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//