ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20180003611 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge 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 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 he would like his discharge to be upgraded to a general, under honorable conditions discharge. At the time of his discharge, he had just reenlisted and was serving the first year of that reenlistment. He got involved with some service members that influenced him to make some bad choices, of which, he regrets to this day. He feels that because of the bad decisions, he was targeted and he was accused of vandalizing someone’s privately owned vehicle, but was later found not to have done this. He believes if he would have been able to get treatment, away from his situation, it would have benefited him. He was a productive member of his unit during his first enlistment and was on his way to becoming a noncommissioned officer. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 August 1985. b. He served overseas in Korea from 8 December 1987 to 9 December 1988 and during this time, he reenlisted for a term of 3 years. c. On 17 July 1989, he accepted non judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine on 11 May 1989 and was reduced to the rank to private/E-1. d. On 29 September 1989, he accepted non judicial punishment under the provisions of Article 15, UCMJ for breaking his prior restriction to the limits of his unit. e. On 4 October 1989, the applicant's commanding officer notified him of his intent to initiate action to affect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14,paragraph 14-12b, for misconduct (patterns of misconduct). Specifically for wrongful use and possession of cocaine, his Field Grade Article 15, and making and uttering worthless checks. f. The applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, he understood his rights and acknowledged the following: * he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf g. The applicant’s commanding officer initiated action to separate him under the provisions of AR 635-200,Cchapter 14, paragraph 14-12b, patterns of misconduct and recommended the issuance of a under other than honorable conditions discharge. His chain of command concurred with the commanders recommendations. h. Consistent with the chain of command's recommendation, the separation authority approved his discharge under the provisions of AR 635-200, chapter 14-12b, and directed the issuance of an under other than honorable conditions discharge. i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 November 1989 under the provisions of AR 635-200, Chapter 14- 12b, and given a characterization of under other than honorable conditions. It also shows he had 4 years, 2 months and 24 days of active service with no lost time. He was awarded or authorized the: * Army Achievement Medal * Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge Hand Grenade 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. After considering the evidence, the ADRB denied his request. 5. By regulation, (AR 635-200), action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history). 6. In reaching its determination, the Board can consider the applicant’s 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 partial relief was warranted. 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. Based upon the misconduct, the failure of the applicant to provide any character evidence to show that he has learned from the events leading to his separation, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. The Board did note that the applicant had a period of prior honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately reflect his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 15 August 1985 until 1 October 1988.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Paragraph 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty. c. Paragraph 14 of this regulation This chapter establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a .pattern ,oft misconduct, commission-of a serious offense, conviction by civil authorities,' desertion, and absence without-leave. Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. d. Paragraph 14-12b (Pattern of Misconduct), says that a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 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) AR20180003611 4 1