ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180005945 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 5 Certificates of Training * 3 Certificates of Achievement * a Memorandum of Commendation 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 is a Christian that attends church which has made him a better person. He volunteers in the community and gives to the homeless and needy. He is a productive citizen in the community and would like to be considered for an honorable discharge. 3. The applicant provides 5 Certificates of various training, 3 certificates of achievement and a memorandum of commendation, which speaks to his character. 4. A review of the applicant’s service record shows. a. He enlisted in Regular Army on 12 October 1990. b. He served in Panama from 11 January 1991 to 21 June 1993. c. On 15 September 1992, court martial charges were preferred against him for: * One specification of assault * Two specifications of disobeying a lawful order * One specification of being drunk and disorderly d. By Summary Court-Martial on 28 September 1992, he was convicted of, one specification of assault, one specifications of disobeying a lawful order, one specification of being drunk and disorderly. His punishment consisted of being reduced to the lowest pay grade E-1, forfeiture of $592.00 per month for one month and confinement for 30 days. e. On 5 May 1993 the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c for the commission of serious offenses. f. On or about 20 December1992, he received an article 15 for once again not obeying a lawful order from a noncommissioned officer and using disrespectful language and deportment to a noncommissioned officer. g. On 5 May 1993, after consulting with legal counsel, he acknowledged: * 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 honorable conditions was issued to him. * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he would be ineligible to apply for enlistment in the Army for 2 years after discharge h. On 11 May 1993 consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for separation under the provisions of section III, paragraph 14-12c, Chapter 14, AR 635-200 (serious misconduct). i. He was discharged from active duty on 22 June 1993 with a general under honorable conditions characterization of service. His DD Form 214 shows he completed 2 years, 8 months and 11 days of active service and 1 month, 1 year, 3 months and 17 days of inactive service. It also shows that he was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksmanship Qualification Badge (M-16) with rifle Bar * Marksmanship Qualification Badge with Grenade Bar * Expert Infantryman Qualification Badge 5. By regulation, 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. 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 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 was remorseful with the application; however, he did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the multiple offenses of a violent nature against others, 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, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 of that regulation provides 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve state principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005945 4 1