ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180010496 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 Records) * Discharge Certificate * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 served his initial 3 year enlistment honorably. He was awarded a Good Conduct Medal. He reenlisted but personal issues at the time kept him from completing his term and requested separation. As a 20 year old, he agreed to the general discharge without thinking about his future. He has served in the Army National Guard and the Reserves since 2008. Currently he is assigned to the 244th Expeditionary Combat Aviation Brigade as the brigade religious affairs specialist. 3. The applicant provided his discharge certificate from the Regular Army (RA). He was honorably discharged on 29 March 1988. 4. A review of the applicant’s service record shows: a. He enlisted in the RA on 18 July 1985 and he reenlisted on 30 March 1988 for 4 years. b. He accepted non-judicial punishment under the provisions of Article 15 on/for the following: * date is missing, failed to be at the assigned place of duty on 14 May 1987, extra duty for 7 days * 23 July 1987, failed to go at the prescribed time to his place of duty on 30 June 1987, reduction to private first class (PFC/E-3), restriction and extra duty for 14 days, forfeiture of $106 per month for 1 month * date and signature are missing, failed to report to the company physical training formation on 7 April 1988, extra duty for 7 days * 22 June 1988, failed to go at the prescribed time to his place of duty on 2 June 1988, reduction to private E-2 (PV2) (suspended for 60 days), forfeiture of $100 per month * 17 August 1988, failed to go at the prescribed time to his place of duty on 10 August 1988, reduction to private E-2 (PV2), forfeiture of $175 per month for 1 month, restriction and extra duty for 14 days c. On 27 September 1988, the immediate commander notified him that action was being initiated to eliminate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, for misconduct. The reasons for the proposed action is for receiving five Article 15s and numerous counseling statements. He 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 * he will not be permitted to apply for enlistment in the U.S. Army within 2 years from date of separation d. On 27 September 1988, he acknowledged he had been notified of the pending separation under the provisions of chapter 14, AR 635-200. e. On 28 September 1988, he consulted with legal counsel and was advised of the contemplated action to accomplish his separation for misconduct under the provisions of chapter 14, AR 635-200 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He did not submit a statement in his own behalf. He acknowledged: * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life * he understood that if he received a discharge/characterization of service which is less than honorable, he may apply to the Army Discharge Review Board and/or the Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his discharge would be upgraded * he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge f. On 3 October 1988, the immediate commander recommended the applicant be discharged under the provisions of chapter 14, section III, AR 635-200 with an under other than honorable conditions discharge certificate. g. On 3 October 1988, the intermediate commander recommended the applicant be discharged under the provisions of chapter 14, section III, AR 635-200 with a general discharge certificate. He requested that a rehabilitative transfer be waived. h. On 8 October 1988, the special court martial convening authority initiated action under chapter 14, AR 635-200, for misconduct to determine if he should be discharged. He approved the applicant for an immediate discharge with a general discharge certificate. i. On 17 October 1988, he was discharged from active duty. He was discharged under the provisions of paragraph 14-12b, AR 635-200, with a under honorable conditions separation. He completed 3 years and 3 months of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Multi National Forces Observers Medal * Good Conduct Medal * Air Assault Badge * Marksman Marksmanship Qualification Badge (M-16) 5. By regulation applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. 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. 7. 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. 8. 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 concluded that partial review was warranted. Based upon lengthy pattern of misconduct and the failure of the applicant to correct his deficiencies, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 18 July 1985 until 29 March 1988.” 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) AR20180008359 4 1