ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20180006785 APPLICANT REQUESTS: an upgrade of his general, under 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 for approximately 35 years he has deliberated over his situation and believes his discharge should be upgraded. He has service connected disabilities and for his family’s sake, he requests the characterization of his service is changed to an honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 December 1979. b. He had continuous honorable service from 21 December 1979 to 29 November 1982, 30 November 1982 to 21 November 1985, 22 November 1985 to 16 November 1988 and 17 November 1988 extension of service was at the request for the convenience of the government. c. He accepted nonjudicial punishment, UCMJ Article 15, on 11 September 1987 for dereliction of duty for failing to supervise his children at the playground. d. On 30 September 1987, he received a letter of reprimand from a general officer for driving while intoxicated. e. He accepted nonjudicial punishment, UCMJ, Article 15 on 21 April 1989, for assault by pointing at BB with a knife, a dangerous weapon f. He accepted nonjudicial punishment, UCMJ, Article 15, on 3 October 1989, for failure to go to an appointed place of duty. g. He accepted nonjudicial punishment, UCMJ, Article 15, on 11 October 1989, for: * failure to go to an appointed place of duty * disrespect toward a noncommissioned officer and failure to obey a lawful order h. On 21 November 1989, his immediate commander notified him of his intent to initiate separation action against him for a pattern of misconduct in accordance with Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Chapter 14-12c, in effect at the time for misconduct, commission of a serious offense. i. On 21 November 1989, the applicant acknowledged receipt of the commander’s intent to separate him. Subsequently, he consulted with legal counsel and did not submit statements on his own behalf. He acknowledged that: * he can expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions or a discharge under other than honorable conditions is issued to him * he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws j. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of a serious offense. The chain of command approved the recommendation for separation. k. Consistent with the chain of command’s recommendations, on 30 November 1989, the separation authority reviewed the separation action; waived further rehabilitation requirements and approved the applicant's discharge for misconduct, commission of a serious offense and directed a General, Under Honorable Conditions Discharge characterization of service. l. The applicant was discharged on 15 December 1989. His DD Form 214 shows he was discharged for misconduct with a general, under honorable conditions characterization of service. He completed 9 years, 11 months and 25 days of net active service. It also shows he was awarded or authorized the: * Army Achievement Medal with 1st Oak Leaf Cluster * Army Good Conduct Medal with 3rd Award * Army Service Ribbon * NCO Professional Development Ribbon * Overseas Service Ribbon with Numeral Two * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Hand Grenade 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. The Board should 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 not warranted. Based upon the patter of misconduct which led to the applicant’s separation involving violent misconduct towards others and the applicant already receiving a General Discharge, the Board concluded there was no error or injustice which would warrant making a change to the applicant’s characterization of service. 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, provides for separation of enlisted personnel and states, action will be taken to separate a soldier for misconduct because of commission of a serious offense. Normally, soldiers separating for misconduct, the characterization of service is under other than honorable conditions. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. 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 characterization would be clearly in appropriate. b. Chapter 14-12c of this regulation provides procedures for separating personnel for misconduct due a commission of a serious offense. A discharge under other than honorable conditions is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the soldier’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 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 stated 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. ABCMR Record of Proceedings (cont) AR20180006785 4 1