BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180012355 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 13 June 2018 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 12 June 2018 * National Personnel Records Center Letter, dated 22 August 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 is older and wiser and does not want the mistakes of a young kid to interfere with the future of an old man. He is trying to switch his insurance to USAA [United Services Automobile Association]. 3. The applicant enlisted in the Regular Army on 2 July 1986. 4. The applicant was counseled on at least seven separate occasions between 29 April 1988 and 16 November 1988. Several DA Forms 4856-R (General Counseling Form) show he was counseled for the following acts of misconduct: * being unprepared for battalion guard mount * missing formation (three incidents) * being apprehended by the civilian authorities and jailed for first degree burglary * failure to report for duty (two incidents) * being found asleep in the driver's seat 5. The applicant accepted nonjudicial punishment (NJP) on 30 August 1988, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in language towards a noncommissioned officer, on or about 14 August 1988. 6. The applicant accepted NJP on 25 October 1988, under the provisions of Article 15 of the UCMJ, for willfully disobeying a lawful order, on or about 30 September 1988. 7. The applicant's commander notified the applicant on 7 December 1988 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for commission of a serious offense. 8. The applicant's commander formally recommended his separation from service on 7 December 1988, under the provisions of Army Regulation 635-200, paragraph 14-12b. 9. The applicant consulted with counsel on 8 December 1988 and was advised of the basis for the contemplated separation actions for a pattern of misconduct, the rights available to him, and the effect of any action taken by him in waiving his rights. After consulting with counsel, he acknowledged receipt of the notification. He elected personal appearance before, and consideration of his case by, an administrative separation board. Additionally, he elected to make a statement in his own behalf; however, his statement is not available for review. 10. The separation authority approved the recommendation for discharge on 27 December 1988 and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 4 January 1989, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 12. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 13. The Board should consider the applicant's provided statement 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 record, 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012355 4 ABCMR Record of Proceedings (cont) AR20180012355 1