ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20180003739 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge to an honorable conditions discharge * reinstatement of his rank from private first class (PFC)/E-3 to specialist (SPC)/ E-4 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge). 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 is requesting that his characterization of service be upgraded from an under other than honorable conditions discharge to an honorable conditions discharge and his rank reinstated to the grade of SPC. The reason for this request is that he is attempting to start a career in law enforcement and cannot get into this field unless his characterization of service is upgraded. He served honorably in the Navy, but he knows that the actions that he took while serving in the Army was a mistake and he regrets those actions every day. He was attempting the help and protect his wife. He respectfully requests the upgrade of his service characterization and hopes that the Board will grant this request so he may better his future and that of the local community. 3. A review of the applicant’s service records shows: a. He had prior service in the Regular Navy and completed 3 years, 9 months, and 9 days of active service. b. He enlisted in the Regular Army (RA) on 16 May 1995. c. DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), the applicant accepted nonjudicial punishment on 26 September 1996 for absent himself from his place of duty at which he was required to be. d. DA Form 2627-1, the applicant accepted nonjudicial punishment on 19 May 1997, for willfully disobeying a direct order. e. DA Form 4126-1 (Bar to Reenlistment Certificate), the applicant’s unit commander recommended him to receive a bar to reenlistment certificate on 29 April 1998, which he acknowledged and did not desire to submit a statement in his own behalf for: * numerous counseling for failure to pay debts * failure to enroll in a family care plan * warrant for his arrest * failure to report to appointed place of duty f. On 6 May 1998, the applicant’s battalion commander approved the bar to reenlistment and he did not desire to appeal. g. On 10 August 1998, the applicant received a report of mental status evaluation which stated that he met the retention standards prescribed in chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement), Army Regulation (AR) 40-501 (Medical Services- Standard of Medical Fitness) and there was no psychiatric disease or defect which warrants disposition through medical channels. He was psychiatrically cleared for any administrative or judicial action deemed appropriate by the command. h. On 26 August 1998, the applicant’s unit commander notified him of the intent to recommend separation action under the provisions of chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct), AR 635-200 (Personnel Separations – Enlisted Personnel). The commander recommended him to receive an under other than honorable discharge certificate for: * since receiving a rehabilitative transfer received numerous counselings for failure to be at his appointed place of duty * failed in ranks inspection * prior to rehabilitative transfer received numerous counselings failure to be at appointed place of duty, failure to pay debts, unsafe driving, failure to sign out on leave, and uttering insufficient checks * 26 September 1996, Summarized Article 15 for failure to go at the time prescribed to his appointed place of duty * 19 May 1997, Summarized Article 15 for violating a lawful order i. On 26 August 1998, the applicant acknowledged receipt of the notification of separation: * the separation authority may direct a characterization of service up to under other that honorable conditions discharge * he understood that he could consult with legal counsel * he may receive copies of documents submitted for the separation * he may request a hearing before an administrative board * he may submit statements in his own behalf * he may waive his rights in writing and may withdraw the waiver at any time up until date of discharge j. DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), the applicant accepted nonjudicial punishment on 26 August 1998 for failure to go at the time prescribed to his appointed place of duty. His punishment included reduction to the grade of PFC/E-3. k. On 31 August 1998, after consultation with legal counsel the applicant acknowledged: * he waived consideration by administrative separation board * he understood his right to submit conditional waiver * he waived a personnel appearance before an administrative separation board * he did not submit statements in his own behalf * he requested consultation with legal counsel * he may encounter substantial prejudice in civilian life * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * if he received a discharge certificate less that honorable he may apply to the Army Discharge Review Board or Army Board for Correction of Military Records for upgrading of the characterization of service * he understood that the act of consideration by either board does not imply the discharge will be upgraded * he understood that he will be ineligible to apply for enlistment in the U.S Army for a period up to 2 years after discharge l. On 31 August 1998, the applicant’s unit commander initiated the separation action under provisions of chapter 14, paragraph 14-12b, AR 635-200 and recommended an under other than honorable characterization of service. m. On 8 September 1998, the applicant’s battalion commander recommended that he received an under other than honorable discharge certificate. n. On 16 September 1998, the applicant’s brigade commander recommended that he receive an under other than honorable discharge certificate. o. On 5 October 1998, the separation authority approved the separation under the provisions of chapter 14, AR 635-200 and be issued an under other than honorable conditions discharge certificate. p. He was discharge from active duty on 16 October 1998 with an under other than honorable characterization of service under provisions of paragraph 14-12b, AR 635-200. His DD Form 214 shows that he completed 3 years, 5 months, and 1 days of active service. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation 635-200 (Personnel Separations – Enlisted Personnel), establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Soldiers are subject to separation, a pattern of misconduct consisting of: (1) discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army Regulations, the civil law, and time honored customs and traditions of the Army. 6. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions, in effect at the time, set forth the basic authority for the promotion and reduction of enlisted personnel. 7. 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 relief is not 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct, 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. Additionally, the Board concluded that the request to have the applicant’s rank reinstated to Specialist/E4 did not have merit. The applicant was reduced by Article 15 and did get promoted again prior to discharge. The Board found no error or injustice which would warrant making a change to the applicant’s rank. 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 Separation – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14-12b establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Soldiers are subject to separation, a pattern of misconduct consisting of: (1) discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army Regulations, the civil law, and time honored customs and traditions of the Army. b. Paragraph 3-7a (Honorable Discharge), states 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. c. Paragraph 3-7b (General Discharge), states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions, in effect at the time, set forth the basic authority for the promotion and reduction of enlisted personnel. a. Paragraph 1-13d, stated the date of rank (DOR) on reduction for all other reasons is the effective date of reduction. When a Soldier is reduced under the Manual for Courts Martial (MCM) (Article 15, UCMJ). b. Paragraph 6-14 (Restoration to Former Grade), states setting aside, mitigation, or suspension of nonjudicial punishment. Procedures and means of restoring grades and announcing these actions. DOR for Soldiers restored to former grade will be the same as the original DOR for that grade. Effective date of restoration will be the date the reduction authority is notified of the sentence or change in sentence. 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) AR20180003739 6 1