ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20180003344 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Character letter, Ms. X 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 his time in the Army at first was very exciting, and he was proud to have enlisted. He was then, and still proud to have served in the military. He joined with the full intention of serving his country yet ended up taking the wrong path. He was young, and never grew up during his time in service. In his life he was a victim of an unhealthy up-bringing. When he came back from Germany to Fort Carson, he still brought with him an unhealthy mind-set, bent on drinking, partying, and being with my family and friends. Once he had the chance to go home on leave or a weekend pass, he took it, and it became very difficult for him to come back to his unit. He took an extended period of leave, and as a result, was absent without leave (AWOL). He knew he was wrong, so he eventually did came back on his own accord. He received an article 15 for being AWOL. Again, he knew that he had to go back to his unit; however, not long after that incident, he went AWOL again, but this time he stayed at his sister's house even longer than before. He received a letter from Fort Carson saying that he needed to return to his unit if not he could have a bad conduct discharge. He returned to his unit and was immediately placed in confinement. He was told he was pending court martial. He went to court martial. The Judge gave his a choice to either stay in the Army and make up the few months that he was AWOL, and get out on an honorable discharge, or he could agree to separate and receive a general discharge. He made the decision to be separated from the Army. At this point in his life, he realizes that hopefully he could get some kind of relief in the form of a general discharge, so that he would be able to get some health care benefits, and a future burial expense benefit. He requests the Board make its decision, keeping in mind that he turned himself in and never had to be pursued, or detained by civil authorities. He regrets his choices at that time in his life. He was a young kid who now wants to make it right. 3. He provides a statement from his sister who states the applicant has always been a good brother; but, he made some bad choices in his life. She tried to persuade the applicant to return to his unit but was not forceful due to being happy to seeing him. She wishes he could have gotten an honorable discharge. The applicant has paid for his mistakes by being placed in jail. He was young and just made a mistake. 4. A review of his service record shows: a. He enlisted in the Regular Army on 12 July 1979. b. He served in Germany from 5 December 1979 to 22 December 1981. c. He accepted nonjudicial punishment (NJP) on/for: * 9 June 1980, for being absent from his place of duty * 7 August 1980, wrongfully having in his possession paraphernalia, he was reduced to private E1 * 7 October 1980, willfully disobey a lawful order given by a superior noncommissioned officer * 10 February 1982, wrongfully have in his possession some amount of marijuana, he was reduced to private E1 d. His DA Form 2-1 (Personnel Qualification Record), shows he was AWOL from 1 March 1982 to 21 March 1982 and 19 April 1982 to 6 July 1982. . e. On 19 May 1982 his battalion commander approved a bar to reenlistment. f. On 23 June 1982, the applicant's immediate commander initiated discharge proceedings under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-33b (1), for a pattern of misconduct of frequent acts of a discreditable nature. The commander requested waiver of further counseling and rehabilitative transfer in the case of the applicant. g. On 23 June 1982, he was advised by counsel of the basis for the contemplated action to separate him for frequent acts of a discreditable nature under the provision of chapter 14, AR 635-200. He waived consideration by a board of officers. He waived personal appearance before a board of officers. He acknowledged: * he may submit a statement in his own behalf, he elected not to submit a statement * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge h. Subsequent to the applicant’s acknowledgement, the immediate commander initiated separation action against him for misconduct-for a pattern of misconduct of frequent acts of a discreditable nature. The chain of command recommended approval. i. on 21 June 1982, consistent with the chain of command’s recommendations, the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-33b(1) for a pattern of misconduct of frequent acts of a discreditable nature and directed that he receive an under other than honorable condition discharge certificate. j. The applicant was discharged from active duty on 30 July 1982 under the provisions of AR 635-200, paragraph 14-33b (1) for a pattern of misconduct for frequent involvement in incidents of a discreditable nature with civil or military authorities. His service characterization is under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 9 months, and 15 days of active service this period, with 104 days lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge .45 Caliber Pistol 5. By regulation, 635-200, chapter 14 establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. 6. 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, the Board determined relief is not warranted. The applicant’s contentions and letter of support was 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 evidence of post-service achievements for the Board to consider. Based upon relatively short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for all the events leading to his separation, 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. 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, provides for the separation of enlisted personnel. a. Paragraph 14-33b, Patterns of misconduct: * Frequent incidents of discreditable nature with civil or military authorities. * An established pattern for shirking. * An established pattern showing dishonorable failure to pay just debts. * An established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support o dependents. b. Paragraph 1-13a, an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. c. Paragraph 1-13b, a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. 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, 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) AR20180003344 4 1