ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20180011799 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions 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 was discharged just a few months prior to his expiration terms of service (ETS) date for driving under the influence (DUI). He was a young man when he enlisted in to the Army, and made poor decisions that cost him his Army career. He has since changed his life and tries hard every day to be a model citizen. He wants to ask for consideration in changing his discharge from under other than honorable conditions to honorable. 3. A review of his service records shows: a. He enlisted on 15 February 1996 in to the Regular Army. b. On 12 August 1997, the applicant accepted nonjudicial punishment (NJP) for one specification of wrongfully using cocaine. His punishment consisted, in part, of reduction to private (PVT)/E-1. c. On 17 July 1998, the applicant accepted NJP for one specification of wrongfully using amphetamines, and methamphetamines. His punishment consisted, in part, of reduction to PVT/E-1. a. d. Court marital charges were preferred on 22 September 1998. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of reckless driving while operating a vehicle under the influence of alcohol and one specification of wrongful overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties. e. He consulted with legal counsel on 24 September 1998, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge In Lieu of Court Martial). He acknowledged: * if his request was accepted, he may be discharged under conditions other than honorable * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge f. Consistent with the chain of command's recommendation, on 25 September 1998 the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of court martial with an under other than honorable conditions discharge. g. On 5 October 1998, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He completed 2 years, 7 months, and 21 days of active service. He was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 4. By regulation (AR 635-200), Soldiers who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial. This do not apply to requests for discharge per this chapter unless the case has been referred to a court–martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court–martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court–martial convening authority 1. 5. By regulation (AR 635-200), a member who requests discharge as prescribed in chapter 10 may be issued an under other than honorable conditions discharge if he or she has been afforded the opportunity to consult with a consulting counsel. The member must certify in writing that he or she, understands that he or she may receive a discharge under other than honorable conditions. The member must understand the adverse nature and possible consequences of such a discharge. The member must personally sign a request for discharge. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the relative short term of service completed prior to a pattern of misconduct, which included some dangerous behaviors, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 6/25/2019 X 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. 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 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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other than Honorable Conditions), a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or for the good of service. d. Chapter 10 of this regulation states, Soldiers who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial. This do not apply to requests for discharge per this chapter unless the case has been referred to a court– martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court–martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court–martial convening authority 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- 1. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.