ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180009114 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to honorable. 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 would like to use government benefits. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 October 1979. He reenlisted on 29 September 1982 for 4 years and 29 January 1987 for 5 years. b. He accepted non-judicial punishment under the provisions of Article 15 on/for the following: * 9 October 1985, on 23 September 1985 for recklessly driving a car causing the car to fishtail and brush the leg of sergeant major (SGM) JJT and disobeying him, reduction to specialist four (SP4), and 45 days extra duty, he appealed and it was denied * 22 June 1988, on 13 June 1988 he was disrespectful to two noncommissioned officers (NCOs), reduction to private first class/E-3 c. On 10 August 1988, the immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, paragraph 14-12b for patterns of misconduct. (1) The reasons for the proposed action are as follows: * enrollment in the overweight program for six months with no progress * received a field grade Article 15 for two specifications of disrespect toward an NCO and one specification for disobedience * counseled on many occasions for failure to report and disrespect toward NCOs * shown apathy for the unit and the U.S. Army (2) The immediate commander recommended that he receive a discharge under honorable conditions and advised the applicant of his right to: * consult with counsel or retain civilian counsel at no expense to the government * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board or present written statements * waive any of these rights in writing * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge d. On 10 August 1988, the applicant was given a mental status evaluation. The examiner determined he has the mental capacity to understand and participate in proceedings, and was mentally responsible. He was psychologically cleared for any action deemed appropriate by his command. e. The applicant’s acknowledgement and elections of rights memorandum is not available for review. Likewise, the commander’s memorandum initiating separation action is also not available for review. f. On 15 August 1988, the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-12b, patterns of misconduct, with a general discharge. Rehabilitative transfer requirements were waived. g. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 19 August 1988, he was discharged from active duty. He was discharged under the provisions of AR 635-200, paragraph 14-12b, with a general under honorable conditions discharge. He completed 8 years, 10 months and 8 days of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Noncommissioned Officer Professional Development Ribbon * Army Good Conduct Medal (2nd Award) * Army Achievement Medal * Driver and Mechanic Badge with Bar 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. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, conviction by civil authorities, desertion, and absence without leave. 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 partial relief was warranted. Based upon a pattern of misconduct which led to the applicant’s separation and the applicant already receiving a General Discharge, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that the applicant had a prior period of honorable service which is not 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 12 October 1979 to 28 September 1982.” 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. 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (1), 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 (1), 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion, and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is unlikely to succeed or impractical. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court- martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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. ABCMR Record of Proceedings (cont) AR20180009114 2 1