ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180003903 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 (ABCMR) 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 was informed upon release of duty, that after sixty or ninety days the under other than honorable discharge would automatically convert over to an honorable discharge. He received and Article 15 for his misconduct and finished extra duty that was part of the punishment. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 30 October 1996. b. On 6 April 1998, he accepted nonjudicial punishment (NJP) for stealing a pair of tennis shoes of a value of about $75.00 on or about 30 March 1998. His punishment consisted of reduction to private/E-1, forfeiture of $216.00 pay, extra duty and restriction. c. On or about 20 April 1998, the applicant's immediate commander notified him of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12(c), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), by reason of serious misconduct; specifically, receiving two Company Grade Article 15’s for larceny, and a Field Grade Article 15 for the same violation. He also vacated suspension on one of the Company Grade Article 15’s for missing a formation. d. On 21 April 1998, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct. He waived consideration by an administrative board, contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions discharge. He acknowledged: * possible effects of this discharge, and of the procedures/rights that were available to him * he was entitled to have his case considered by an administrative separation board because he was being considered for an under other than honorable conditions discharge * he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued * he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading, however consideration by either Board does not imply that discharge would be upgraded * understood he was ineligible to apply for enlistment in the Army for 2 years after discharge * he elected not to submit a statement in his own behalf * he submitted a conditional waiver e. His immediate commander recommended approval of the separation under the provisions of chapter 14, paragraph 14-12c for a commission of a serious offense, and that he be issued an Other Than Honorable Discharge Certificate. f. On 18 May 1998, following a legal review for legal sufficiency the separation authority disapproved the applicant's conditional waiver and denied request for a general, under honorable conditions discharge. Instead he ordered the appointment of an administrative separation board to determine if the applicant should be separated. g. On 24 June 1998, the applicant acknowledged receipt of notification to appear before board of officers on 15 July 1998. His intermediate and senior commanders recommended disapproval of the conditional waiver request. h. On 14 July 1998, the separation authority revoked his action, dated 18 May 1998, regarding convening an administrative separation board, and instead ordered the applicant’s discharge under the provisions of AR 635-200, paragraph 14-12c, for commission of a serious offense with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. i. The applicant was discharged on 28 July 1998. His DD Form 214 shows he was discharged under the provisions of chapter 14 of AR 635-200 due to misconduct with an under other than honorable conditions characterization of service. He completed 1 year, 8 months, and 29 days of active service. He was awarded or authorized the Army Service Ribbon. j. 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. 4. By regulation action may be taken to separate Soldiers for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 5. 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 a relatively short term of honorable service completed prior to multiple offenses of a criminal nature, 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. 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. ________X_________ 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 3-7a states an (Honorable Discharge) is a separation with honor and entitles the recipient to benefits provided by law. 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. Paragraph 3-7b (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. c. Chapter 14 of that same regulation establishes policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a member discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 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) AR20180003903 4 1