ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180000485 APPLICANT REQUESTS: The applicant requests an upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Compensation History, dated 22 December 2017 * State of Tennessee Earnings Statement for pay period 16 November 2017 to 30 November 2017 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 20 years ago he made a couple of mistakes that tarnished his otherwise unblemished military career. A career that saw him serve nearly a year in Bosnia where he earned the Army Commendation Medal. He believes that for his discharge to remain anything other than honorable, at this point, is unjust and is jeopardizing his opportunity to make advancements within the Tennessee State Government where he has been employed for that past nearly six years. His current job is with the State Fire Marshal's Office Fire Investigations Section where he works closely with law enforcement officers and strive every day to help reduce the loss of life in the state of TN. He believes that he served his country honorably and continues to do so. 3. On 28 July 1992, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 4 years. On 18 July 1994, he extended his current enlistment for 5 months with an expired term of service (ETS) of 27 December 1996. On 12 December 1996, he was discharged for immediate reenlistment. On 13 December 1996, he reenlisted for a term of 3 years and re-established an ETS of 12 December 1999. 4. A review of his record shows he accepted nonjudicial punishment on: * 25 April 1997 for willfully disobeying a superior noncommissioned officer and assaulting a Soldier by punching him in his left eye with his fist and kicking him in the rib and back by means likely to produce grievous bodily hard; his punishment was vacated. * 4 June 1997 for willfully disobeying a superior noncommissioned officer and for violating a lawful general regulation by operating and allowing another Soldier to operate his privately owned vehicle with expired registration * 9 July 1997 for wrongfully using marijuana 5. On 14 August 1997, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14- 12c(2), commission of a serious offense – abuse of illegal drugs. 6. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised of the basis for the contemplated action, understood his rights, waived personal appearance before a board, waived consulting with counsel, and elected not to submit a statement in his own behalf. 7. The appropriate commander approved the recommendation for separation, directing the applicant be issued a General, Under Honorable Conditions Discharge Certificate. 8. On 26 August 1997, the applicant was discharged accordingly. His service was characterized as general under honorable conditions. He completed 5 years and 29 days of net active service this period with 4 years, 7 months, and 20 days of Foreign Service. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows service in Bosnia from 27 December 1995 to 11 October 1996 and he was awarded or authorized: * Army Commendation Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Armed Forces Service Medal * Army Achievement Medal * Good Conduct Medal * NATO Medal 9. The applicant provides: * Compensation History, dated 22 December 2017, which shows the applicant’s compensation history of 6 March 2012 to 1 January 2017, amount of his base salary, change amount and type, and job titles * State of Tennessee Earnings Statement, which shows the applicants earnings for pay period 16 November 2017 to 30 November 2017 and lists the department as Fire Investigation and the job title as Administrative Services Assistant 3 10. The applicant states 20 years ago he made a couple of mistakes that tarnished his otherwise unblemished military career. His record shows he accepted NJP on three occasions and his suspended punishments of one of those NJPs were vacated on two occasions. He did serve in Bosnia from 27 December 1995 to 11 October 1996. He completed 8 months of his 36 months contractual obligation. 11. AR 635-200, Chapter 14 (Misconduct), paragraph 14-12c(2), in effect at the time, was a separation for commission of a serious offense-. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. The applicant received a general discharge. 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. 12. 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 Board agreed that the applicant’s discharge characterization is appropriate for 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: In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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 otherwise insufficient as a basis for correction of the records of the individual concerned. ___________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): A review of the applicant’s record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for period ending 26 August 1997, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding: * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): Parachutist Badge and M16 Rifle Sharpshooter Qualification Badge * item 18 (Remarks) "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19920228 UNTIL 19961212" 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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. 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. a. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related- offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. 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. b. Paragraph 14-12c(2) provided, in pertinent part, that a Soldier who was a first time drug offender below the grade of sergeant, or with less than 3 years of total military service, Active and Reserve, may be processed for separation as appropriate. c. 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS//