ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180010729 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge). * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders D-03-E10979, United States Army Reserve (USAR) discharge order 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 (ABCMR) 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 on active duty and served in Southwest Asia. He received a Southwest Asia Service Medal w/3 bronze stars and Kuwait Liberation Medal. He was discharged for misconduct-commission of a serious offense, due to missing formation. He was misinformed from by his First Sergeant (1SG) X___ who had advised him to plead guilty, and stated he would have his back and fight for him, in which he never followed through with that statement. The 1SG told him as he was going into Lieutenant Colonel X___'s Office, that he couldn’t do nothing for him. He was 19 years old in Germany and naive to believe that his command would help him after he was instructed to plead guilty. Due to the field grade Article 15, he was restricted to the battalion area. Towards the end of his restriction, he was accused of being outside his restriction area although it was hear say, that he disobeyed those orders which resulted in a court martial. No one informed him of his rights during the Article 15 and was never represented properly. 3. The applicant provides orders D-03-E10979, honorable discharge from the USAR effective 29 March 2005. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 October 1989. b. He accepted non-judicial punishment under the provisions of Article 15 on 9 August 1990, for disobeying a lawful order by a non-commissioned officer on or about 20 July 1990, 26 July 1990 (two times), and 27 July 1990. His punishment was reduction to private (PVT/E-1), forfeiture of $362 pay per month for two months, restriction and extra duty for 45 days. c. On 28 September 190, he was convicted by a summary court-martial of one specification of breaking restriction and one specification of failing to be at his appointed place of duty. The court sentenced him to forfeiture of $466 per month for 1 month, and confinement and restriction for 14 days d. On 20 November 1991, a mental evaluation was conducted. The examiner stated the applicant had the mental capacity to understand and participate in board proceedings and was mentally responsible. e. On 9 December 1991, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of chapter 14, paragraph 14-12b, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for patterns of misconduct. The reason for the proposed action was for failing to be at his appointed place of duty two times, breaking restriction, disobeying a lawful order four times and missing formation. The commander recommended that he receive a general discharge and advised the applicant of his right to: * consult with counsel and/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 * waive any of the above rights f. On 17 January 1992, the applicant's intermediate commander re-notified him that action was being initiated to separate him under the provisions of chapter 14, paragraph 14-12b, AR 635-200 for patterns of misconduct, by reason of failing to be at his appointed place of duty two times, breaking restriction, disobeying a lawful order four times and missing formation. The commander recommended that he receive a general discharge and advised the applicant of his right to: * consult with counsel and/or retain civilian counsel at no expense to the government and/or submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * waive any of the above rights g. On 6 February 1992, the applicant's intermediate commander recommended that the applicant be separated under the provisions of chapter 14, paragraph 14-12b, AR 635-200. He requested that rehabilitation requirements be waived and not be transferred to the Individual Ready Reserve. h. On 25 February 1992, he accepted non-judicial punishment under the provisions of Article 15, for willfully and wrongly damaging a moped. His punishment was forfeiture of $392 pay per month for one month, restriction and extra duty for 30 days. i. On 23 March 1992, 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 waived his rights to have his case considered by an administrative separation board contingent on receiving a characterization of service or description of separation no less favorable than under honorable conditions. He made his request of his own free will. He requested personal appearance and legal counsel if the separation authority refused to accept his conditional waiver for a hearing before an administrative separation board. He submitted a statement in his own behalf. He acknowledged: * understands that he may, up until the date the separation authority orders, directs or approves his separation, withdraw the waiver of any of his rights * 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 (ADRB) and/or the ABCMR 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 j. Six statements were provided on his behalf. Specialist (SPC/E-4) X___ states that he was recommended to appear before a board and refused to go due to personal reasons. He had issues with his son’s mother and tried to explain to his chain of command (COC) but they turned their backs on him until he began to get in trouble. He was a hard worker. He was told that he would go to the board. He studied and got a haircut but going to the board was a lie to see his reaction. SPC X___ states he tried very hard to do the right thing but his career was constantly interrupted by personal problems. He struggled with his COC. He was under stress but always found a way to deal with it and performed his job the best way he could. Sergeant First Class X___ states he wasn’t the best Soldier but he soldiered like everyone else. He had his share of trouble and should be chaptered. Additional comments may be reviewed (detailed statements enclosed in packet). k. On 25 March 1992, a memorandum for record shows that the applicant’s chapter packet was placed in the 3rd Infantry Division, Staff Judge Advocate’s distribution on 14 February 1992. The applicant’s chapter packet never arrived to Division Artillery (DIVARTY) and had to be reconstructed for review by the DIVARTY commander. l. On 27 April 1992, he was notified to appear before a board of officers on 5 May 1992 to determine if he should be separated from service. Record of the board is not available for review. m. His DD Form 214 shows, he was discharged from active duty on 21 May 1992. He was discharged under the provisions of paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense. He completed 2 years, 7 months and 5 days of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Southwest Asia Service Medal w/3 Bronze Stars * Kuwait Liberation Medal * Expert Marksmanship Qualification Badge (M-16) * Sharpshooter Marksmanship Qualification Badge (Grenade) n. There is no evidence the applicant has applied to the ADRB 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 IAW 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 the type of misconduct and the period of honorable service completed prior to that misconduct, the Board concluded that the characterization of service received at the time of separation was too harsh and created an injustice. For that reason, the Board recommended upgrading the characterization of service of the application to Under Honorable Conditions (General). 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 to Honorable. 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 (Personnel Separations-Active Duty Enlisted Administrative Separations) in effect at the time, 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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, 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) AR20180010729 6 1