ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180006793 APPLICANT REQUESTS: an upgrade of his under other than honorable condition 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 he was discharged as a result of a civil matter. He was able and willing to continue his military duties. His record in the military was perfect. He served on the honor guard and participated in professional rifle competitions. He encountered some civil legal issues one month shy of his planned discharge. He was capable of continuing his official duties and believe that he never should have been discharged because of his legal issues. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 17 July 1981. b. On 16 July 1982, the applicant was convicted by civil court for driving under the influence (DUI). The court sentenced him to a sentence on one year and a fine of $500. c. On 26 October 1982, the applicant was charged with driving under the influence of alcohol (DUI). d. On or about 19 January 1983, the commander provided a list of formal counseling the applicant had received: * 3 June 1982, absent/failure to repair, by Sergeant (SGT) X. * 4 June 1982, missing an appointment, by Staff Sergeant (SSG) X * 16 June 1982, alcohol, by First Lieutenant (1LT) X. * 9 July 1982, tardiness and use of habit forming drugs/alcohol, by SGT X. * 19 January 1983, tardiness, by SGT X. e. On 14 March 1983, he was arrested for DUI by civil authorities. He was convicted by the civilian court for this DUI and sentenced to $1,500 fine and cost, 12 months. f. On 4 May 1983, his immediate commander notified him of his intent to initiate separation action against him (suspended until 16 May 1983) in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-5b, in effect at the time, for misconduct – civil conviction. The commander initiated this action while the applicant was confined by civil authorities. The applicant was returned to military control on 23 May 1983. g. On 31 May 1983, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and he declined consideration of his case by a board officers or personal appearance before a board of officers. He further elected not to submit statements on his own behalf. He acknowledged: * he may expect to encounter substantial prejudice in civilian life because of a general discharge under honorable conditions * 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 * he may apply to the Army Discharge Review Board or ABCMR for upgrading if he receive a discharge/character of service that is less than honorable h. On 9 Jun 1983, subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for misconduct – civil conviction. The commander stated that the applicant demonstrated apathy and poor attitude as shown by numerous instances of not being at appointed place of duty, and his conviction by civil court. i. The chain of command recommended approval. The applicant's senior commander stated that the applicant had been convicted in North Carolina District Court on three occasions: driving under the influence, driving under the influence - third offense, and driving while license revoked/suspended/suspended indefinitely. In view of his record, poor attitude and failure to respond to counselling and assistance offered by his chain of command, his retention was prejudicial to the good order and discipline of his unit and the United States Army. j. On 29 June 1983, following a legal review for legal sufficiency, and consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-5b, by reason of misconduct – civil conviction, ordered his service be characterized as under other than honorable conditions, and reduction to the lowest enlisted grade. j. On 13 July 1983, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 paragraph 14-5b of AR 635-200, reduced to private/(E-1) and was issued an Undesirable Discharge Certificate. He completed 1 year, 9 months and 18 days of active service with 69 days of lost time. It also shows he was awarded or authorized the Army Service Ribbon. 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. After considering the evidence, the ADRB denied his request. 5. By regulation (AR 635-200), chapter 14 stipulates that action will be taken to separate a member for misconduct (civil conviction) when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is appropriate for a member discharged under AR 635-200, Chapter 14-5b. 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 not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for 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 characterization would be clearly in appropriate. 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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14, 5b of this regulation provides procedures for separating personnel for a pattern of misconduct – civil conviction. 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) AR20180006793 4 1