ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20180008196 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. 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) * National Personnel Records Center letter dated 15 March 2017 with Service Record * Five DD Forms 4 (Enlistment Contracts) * DA Form 2 (Personnel Qualification Record) * DA Form 2A (Personnel Qualification Record, Part I) * Four DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) * Two DD Forms 214 (Report of Separation from Active Duty) * Orders 232-4 dated 7 December 1987 - Discharge 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 did not fight his general discharge at the time because he was told by his commander and by the legal office that it would automatically be upgraded to honorable after six month. He was about to be sent back to Germany and his wife had just given birth to his baby and told him she was not going to Germany, he would have to go by himself. He believed it was in his best interest to accept the General Discharge or if he fought it, possibly lose his family by going back to Germany. He has been a model citizen since getting out of the Army. He has worked, raised a family, and a 67 year old productive member of society as a 40% disabled veteran. 3. The applicant provides the above referenced service records provided to him by the National Personnel Records Center. 1. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 26 January 1972. He was discharged for immediate reenlistment on 16 May 1974. He reenlisted in the RA on 17 May 1974 and was discharged for immediate reenlistment on 27 March 1977. He reenlisted in the RA on 28 March 1977. b. He served in a variety of stateside or overseas assignments, including foreign service in: * Germany from 8 July 1972 to 17 May 1974 * Korea from 15 December 1975 to 14 February 1977 * Germany from 14 August 1979 to 8 May 1982 c. He received nonjudicial punishment (NJP) on/for: * 13 June 1972, failing to go to his appointed place of duty; his punishment included forfeiture of $60.00 for one month * 23 February 1981, failure to obey a lawful general regulation, dereliction of duties by not properly supervising the drill crew, and for making a false official statement; his punishment included reduction to specialist/E-4 (suspended for 90 days), and forfeiture of $150.00 per month for two months * 18 January 1985, being absent without leave (AWOL) on 8 January 1985; his punishment included forfeiture of $260.00 for one month (suspended for 180 days), subsequently remitted * 31 August 1987, wrongful use of marijuana; his punishment included reduction to specialist/E-4 d. On 4 November 1987, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for commission of a serious offense. The specific reasons for his proposed recommendation are: numerous infractions of military discipline as evidenced by two Article 15’s for failure to repair and a positive drug use, and numerous dishonored checks with no signs of improvement. The applicant acknowledged receipt of the notification of separation action on the same day. e. On 4 November 1987, 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 other than honorable conditions is issued to him * he may apply to the ADRB or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge * * he elected to not submit a statement on his own behalf f. On 6 November 1987, the immediate commander initiated separation action against the applicant for serious acts of misconduct. He recommended that his period of service be characterized as general, under honorable conditions. The intermediate commanders recommended approval. g. On 20 November 1987, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation, as amended by his DD Form 215 (Correction to DD Form 214 dated 12 April 1995), under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for commission of a serious offense. He would be issued a General Discharge Certificate. h. On 21 December 1987, he was discharged from active duty with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 years, 8 months, and 14 days of active service with 5 years, 2 months, and 12 days of prior active service. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Army Good Conduct Medal (4th Award) * Overseas Service Ribbon * Noncommissioned Officer Professional Development Ribbon * National Defense Service Medal 5. On 14 April 1995, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB did determine that the reason and authority of the discharge should be changed and a DD Form 215 issued to correct the error, as noted above. 6. 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. 7. 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. 1. 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 guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement, the frequency and nature of his misconduct and the reason for his separation, The Board found the applicant provided no character witness statements or evidence of post-service achievements in support of a clemency determination. Based on a preponderance of evidence, the Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 28 March 1977 until 23 May 1984.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 9/9/2019 CHAIRPERSON Signed by: 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, 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 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) 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 the regulation states 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. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 4. 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, 1. 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//