ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20180003838 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). 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 thought his discharge was upgraded, but he never received a new DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 14 December 1979. b. On 21 September 1981, he received nonjudicial punishment under Article 15 for failing to maintain sufficient funds in his bank account. c. On 19 October 1981, the applicant's immediate commander notified him that a discharge action was being initiated against him for misconduct, specifically pattern of showing a dishonorable failure to pay just debts, in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander cited the specific reasons as the applicant's lack control over his dependents, failing to keep sufficient funds in his checking account, cashing numerous checks on a closed account, and making false statements to loan companies in order to get financing. d. The record is void of the applicant’s signed election of rights. However, the applicant’s chain of command provided a letter to the applicant at his unit listing his rights to consult counsel and present his case before an administrative discharge. His chain of command recommended approval of the applicant’s discharge. e. 8 December 1981, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14. He would be issued an Under Other Than Honorable Conditions Discharge Certificate. f. On 14 December 1981, he was discharged from active duty under the provisions of AR 635-200, Chapter 14. His DD Form 214 shows he received a characterization of service of under other than honorable conditions. He completed 2 years of active service. It also shows he was awarded or authorized: * Good Conduct Medal * Army Service Ribbon * Marksmanship Qualification Badge with Rifle Bar * Non-Commissioned Officer Professional Development Ribbon. 4. On 26 July 1989, the Army Discharge Review Board determined that the applicant did not present, and the records did not contain, sufficient justification to conclude that it would be in the interest of justice to grant the applicant an upgrade to his discharge characterization or to excuse the failure to file within the time prescribed by law. 5. By regulation, members are subject to separation if a member displays a pattern of misconduct consisting of conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct volatile of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the type of misconduct and the amount of honorable service completed prior to the misconduct, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states 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 or the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issue to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12b (Misconduct) states members are subject to separation if a member displays a pattern of misconduct consisting of conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct volatile 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. 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. ABCMR Record of Proceedings (cont) AR20180003838 3 1