ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20180002292 APPLICANT REQUESTS: an upgrade to his under honorable conditions (general) discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Awards and achievements * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. He reached the rank of E-6 after 13 years of good service. During the relevant period, he was a recruiter, which is known to be an extremely stressful military occupational specialty (MOS). The demands of the job also strained his marriage. He began drinking more often, as a way of coping with extreme stress and depression. He was chaptered out of the Army after receiving two citations for driving under the influence (DUl) in one year. b. No type of treatment of medical care was offered, he received no support from his command, and despite continuous honorable service from 16 July 1974 to 21 February 1988 his entire career is tainted by a general discharge. He has been clean and sober for the past 22 years. The applicant felt angry and embarrassed to apply for a discharge upgrade initially, his wife made him promise to apply before she died of cancer in 2013. 3. The applicant provides: a. Thirty awards, commendations, certificates, and letters of appreciations of exceptional or meritorious achievements during his service from 13 June 1978 to 27 October 1989. b. A unreadable DD Form 214; however, verified by a Clackamas county, OR veteran service representative. 4. A review of his service record shows: a. He enlisted in the Regular Army on 16 July 1974. b. He served in the Army recruiting battalion, Portland, OR from 27 April 1984 to 3 April 1990. c. The diversion court report dated 12 June 1989 shows he completed the diversion course of treatment as recommended. d. On 14 November 1989, information was disclosed by memorandum of a rumor that the applicant was arrested for rape and DUI. A police check was ran with the Portland city police, the police report revealed that the applicant was arrested and was under investigation for rape that occurred on 20 July 1989. He was arrested for DUI by the Clackamas county sheriff department on the same day, the DD Form 369, (Police Report Check), dated 14 November 1986 shows that the applicant has a police record for assault IV on 4 September 1986, and DUI on 20 July 1986. The Clackamas county court house was contacted on 15 November 1989 to check on the formal disposition of the charges, they provided the following: * 20 July 1986 – driving under the influence of intoxicants (DUII), case closed and charges dropped * 5 April 1988 – DUII, all fines and fees paid, enrolled in diversion program * 4 September 1986 – assault IV, case closed, charges dropped, disposition domestic violence and the wife did not press charges e. He received counseling on 15 November 1989 for the DUI charge that occurred on 20 July 1989, his driving privileges of government vehicles were revoked, he was flagged and he was referred to alcohol and drug abuse control program (ADACP) for screening. f. A Bar to Reenlistment Certificate recommendation was submitted on 18 November 1989 for receiving three DUI incidents. g. On 18 November 1989, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12c (commission of a serious offense) of incidents reported on police record checks dated 20 November 1989 of: * 20 July 1986, DUI – case closed and charges dropped * 4 September 1986, assault IV – case closed and charges dropped * 5 April 1986, DUI – all fines and fees paid/enrolled in diversion program * 20 July 1989, rape * 20 July 1989, DUI h. On 21 November 1989, he consulted with legal counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14. He acknowledged: * the rights available to him and the effect of waiving said rights * the right to have his case heard by an administrative separation board * the right to submit a statement in his own behalf , he did not elect * he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued * he would be ineligible to apply for enlistment in the Army for a period of two years after discharge i. The applicant provided 11 character statements that stated in part the applicant was an honest, loyal, professional, caring, and dedicated Soldier. He went out of his way to coach and mentor young recruiters and provided them guidance and counsel toward mission with integrity. He brought a station that had many internal problems to the top medium station in the Portland recruiting battalion in fiscal year 1989. He was a leader that you could count on and get the job done. j. The X__& X__ attorneys at law, Portland, OR provided the background information regarding incidents of 20 July 1989. On 20 July 1989, the applicant was arrested and charged with DUII. At the time he was arrested he was also suspect in an alleged sexual assault involving an alleged prostitute. He was taken into custody without incident. The matters regarding the sexual assault charges, the investigation was apparently completed by the Milwaukie police department and the matter was rejected by the Clackamas County district attorney’s office for the stating the complaining witness was not available. The applicant successfully completed the required diversion program or the DUII charge. k. The applicant submitted a formal rebuttal to the chapter 14 to his commander on 12 December 1989. The rebuttal was based on the grounds that some of the findings are not true, and the punishment is unreasonable, unjust and clearly disproportionate to the offense alleged. He addressed the charges mentioned above and stated: (1). The DUI on 20 July 1986, he was never charged. The command is basing this charge on a DD Form 369, dated 14 November 1989 that was ran through Clackamas County sheriff department. Based on the DD Form 369 he had ran on 20 November 1989, that charge was not listed. (2). The assault IV charge on 4 September 1986, he was arrested for an incident between him and his son at his home in Milwaukie, OR, about the misuse of his car. His wife got upset and called the police. When they arrived, they identified themselves and he let them in the house. He informed the police that his wife had called the police and he was arrested but the charge were dropped. (3). He was arrested for DUI on 5 April 1986, he was enrolled and completed the diversion program and the charge were dismissed. (4). As for the rape on 20 July 1989, he never sexually assaulted anyone and was never charged. The police record check dated 20 November 1989, ran by the Milwaukie police department and the district court of Clackamas county verified his claim. (5). He admitted to the arrested for DUI on 20 July 1989, but at the time he could not go in to details the case surrounding the case because it was still pending and the court date scheduled for 18 January 1990. (6). After being assigned to the Milwaukie recruiting station for 3 years, he was later assigned to the gateway recruiting station as the station commander. Even under adverse disposition, he still believed that the Army is by far the best branch of service and he intended to do everything in his power to stay in the Army. No matter the board decision his attitude toward the service would not change. (7). He felt that LTC X__ made a very quick and irrational decision without having all the facts prior to submitting the chapter 14 proceedings. Four of the charges he mentioned were dropped or dismissed, and should have never appeared in the proceedings. He used the old Army ploy of stacking charges. He used information that was based on rumor, and charges that should have been eradicated. He felt that LTC X__ was unfair, and he did not listen to extenuating and mitigating evidence, or did not consider it all. _ (8). He understood the seriousness of his offense and he made progress in getting his problem corrected. First, the hardest part was he had to admit to himself that he had a problem. He was received counseling through the local alcohol anonymous chapter for both he and his wife who was involved in giving added support. He respectfully, requested to remain in the Army. l. On 4 January 1990, the brigade commander recommended a board be convened to consider whether to separate the applicant for serious misconduct. He recommended his service be characterized as other than honorable if the separation was approved. m. A board of officers was appointed on 27 January 1990 to determine whether the applicant should be discharged. n. On 12 February 1990, the applicant voluntarily waived consideration of his case by an administrative board contingent upon receiving a characterization of service or description of separation no less favorable than a under honorable conditions, otherwise referred to as a general discharge. o. His immediate commander initiated action, date unknown, to separate him under the provisions of AR 635-200, for a pattern of misconduct involving civil authorities and recommended a under other than honorable condition discharge. He acknowledge that he understood that if the separation authority refused to accept the conditional waiver of a hearing that he will be referred to the administrative separation board. p. On 20 February 1990 his immediate commander recommend disapproval of the applicant’s request to waive his right to have his case considered by an administrative separation board. q. The brigade commander considered the matter of the applicant’s request to waive his rights to an administrative separation board on 5 March 1990. He recommended approval of the applicant’s request to receive a discharge under honorable conditions (general). r. On 16 March 1990, the separation authority approved his waiver of his rights to appear before an administrative separation board and directed that he be discharged under the provisions of AR 635-200, paragraph 14-12c, for commission of a serious offense. He directed that his service be characterized as under honorable conditions and issued a general discharge certificate. s. The applicant was discharged from active duty on 3 April 1990 under the provisions of AR 635-200, para 14-12c (Misconduct- Commission of a serious offense). His DD Form 214 shows he completed 12 years, 7 months and 3 days of active service this period. It also shows he was awarded or authorized the: * Army Service Ribbon * Army Commendation Medal * Army Achievement Medal (3rd Oak Leaf Cluster) * Army Good Conduct Medal (5th Award) * National Defense Medal * Noncommissioned Professional Development Ribbon * Gold recruiter Badge with/3 Sapphire Stars * Army of Occupation Medal * Overseas Service Ribbon * Expert Marksmanship Qualification Badge Rifle (M-16) 5. By regulation 635-200, paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 6. By regulation 635-5-1 (Personnel Separations-Separation Program Designators), members are subject to, separation code JKQ is appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 7. By regulation 600-8-22 (Military Awards), provides instructions concerning individual and unit military awards. The goal of the total Army awards program is to foster mission accomplishment by recognizing excellence of both military and civilian members of the force and motivating them to high levels of performance and service. 8. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the serious nature of the misconduct which led to his discharge, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to the discharge, the Board concluded that the characterization of service received awas appropriate. 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. AR 635-200, in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. 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. Chapter 14 -12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 3. AR 635-5-1 states that the separation program designator (SPD) code is used in statistical accounting to represent the reason for separation. 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. 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, 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) AR20180002292 7 1