ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180010659 APPLICANT REQUESTS: 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) * Statement from S.S. 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 appreciate the Board taking the time to review his application. He takes full responsibility for his actions for putting himself in this position. He was young and did not understand the duties and responsibilities that stood before him as a man or Soldier. There is not a day that goes by, he doesn’t regret his actions. He is now a 42 year old single father of a 19 year old daughter whose mother also served but passed in 2001. He leads a productive life as a heating and air-condition tech. He has worked every day since he got out and he loves his country. 3. The applicant provides, a letter from S.S. that states she has known the applicant for 17 years and he has been a great father to his daughter. He has raised her since she was 6 years old. He is an upstanding citizen and has been working hard, very hard since leaving the Army. He always has a positive attitude on life and shows respect to others. 4. He enlisted in the Regular Army on 9 September 1993. a. He accepted nonjudicial punishment(NJP) on 28 December 1995 for disrespect to a noncommission officer (NCO). He was reduced to the grade of private/E2. b. The applicant's immediate commander notified the applicant on 5 September 1996 that he intended to initiate action on him for elimination from military service under the provisions of (AR) Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 14-12b, for Commission of a serious offense, patterns of misconduct. The applicant acknowledged on the same day. c. The reasons for his proposed actions are as follows, you have been detained by civilian authorities on two separate occasions, first for failure to maintain financial responsibility, expired motor vehicle inspection sticker and displaying expired license plates. The second for possession of marijuana and assault with bodily injury. He has received a company grade article I5 for disrespect toward a NCO. d. The applicant consulted with counsel (no date annotated) and acknowledged receipt of the notification. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. e. On 23 September 1996, consistent with the chain of command's recommendation, the separation authority approved the applicant’s discharge with an genera,l under honorable conditions discharge. f. On 4 October 1996, he was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 14-12b (misconduct) with an under honorable conditions characterization of service. He completed 2 years, 11 months, and 15 days of active service. Lost days are 28 February 1996-18 March 1996, 19 March 1996 - 24 March 1996, and 21 August 1996-4 September 1996. 5. 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. 6. By regulation, commanders are authorized to initiate separation action against Soldiers for various types of misconduct including those who commit a serious offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 7. 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 DOD guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance onl liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct which led to the applicant being separatied and the applicant already receiving a General Discharge, the Board concluded that 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 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that 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 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 12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 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) AR20180010659 2 1