ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180011856 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an 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 his conduct may have been inappropriate at the time, but he was very young and did nothing wrong according to the rules. He did not know any better. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 August 1979. b. He served in Korea from 2 December 1979 through 30 November 1980 c. He accepted/received non-judicial punishment (NJP) on/for: * on 5 November 1980, for failing to go at the prescribed time to his place of duty on or about 23 October 1980 * on 17 February 1981, for wrongful possession of marijuana on or about 30 January 1981 * on 20 April 1981, for failing to obey a lawful order, by failing to be prepared for an inspection on 9 April 1981 d. The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review. e. However, the applicant was discharged on 4 August 1981, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b (1) for misconduct. f. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he completed 1 year, 11 months and 4 days of net active service with lost time from 20 April 1981 to 5 May 1981. 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, members are subject to separation for patterns of misconduct and frequent incidents of discreditable nature with civil or military authorities. 6. The Board should consider the applicants 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 relief was not warranted. Based upon the relatively short term of honorable service completed prior to a pattern of misconduct, as well as a lack of demonstrated acceptance of the misconduct on behalf of the applicant in his statement, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13c (Under Other than Honorable Conditions) states a discharge under other than honorable condition it is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for homosexuality, for security reasons, or for the good of the service. d. Chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity ABCMR Record of Proceedings (cont) AR20180011856 3 1