ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180012511 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Services article * Support letter, MS X____ * College acceptance letter * Treatment plan * Support letter, Pastor X____ * Grade report * Status report letter * Support letter, salvation army * Certificates * Additional DD Form 149 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050006425 on 13 December 2005. 2. The applicant states he would love when his discharge from the service will be upgraded from other than honorable to general, under honorable conditions. He has been clean for more than 10 years. He started an N.A. group in New Orleans 34 years ago. He is 2 semester hours from a BA degree in divinity. He is a peer support specialist. He has a 2 year substance Abuse certificate. He is a born again Christian. He has had lots of time to repent, pray and seek the face of God before he dies. God is faithful today; and even though God has been good to him, his back and mental health issues are mounting. He is not 21 years old anymore. He realizes he has made his share of mistakes in life but he has been able to still find the energy from above to get up each day and help other people. He would love to be alive when God uses the Board to help him get an upgrade on his discharge, please. 3. The applicant provided: a. A news article narrating his journey as a recovering addict. He is cited for his overcoming his challenges and remaining sober. He is able to assist others through volunteer work and obtain his college degree. He has been sober for nearly 2 years. b. A support letter from Ms. X___, stating the applicant was a former resident and participant in her volunteer organization. He was diligent in setting workable goals and would be admitted to the independent permanent housing program. c. A college acceptance letter to Union Baptist College and Theological Seminary. d. A doctor’s treatment plan showing when the applicant can return to work. e. A letter submitted by the applicant’s pastor, requesting educational funding support from a state agency for the applicant. f. A grade report showing the applicant’s grades for the spring semester of 2018. g. A letter reference the applicant, from Union Baptist College in response to an inquiry from a state agency. h. A letter of support from the Salvation Army commenting on the applicant’s as an excellent student. i. Twelve certificates of completion of various correspondence courses administered by the Salvation Army. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 January 1981. He reenlisted on 6 September 1983. b. He served in Panama from 3 March 1981 to 8 February 1983. He served in Germany from 18 October 1984 to 10 March 1986. c. He received nonjudicial punishment under Article 15 on 4 June 1987, for wrongfully borrowing money from two subordinate Soldiers. His punishment was reduction to E-5 (suspended for 5 months). The punishment was vacated on 21 August 1987 and he was reduced to E5. d. On 23 December 1987, court martial charges were preferred against the applicant. His DA Form 458 (Charge Sheet) indicates he was charged with: * specification 1, wrongfully using marijuana * specification 2, wrongfully possessing a trace amount of cocaine * specification 3, wrongfully possessing a smoking device with screen e. On 29 December 1987, he consulted with legal counsel and was advised of the contemplated trial by court-martial. He subsequently requested discharge under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service, in lieu of trial by court-martial. In his request he acknowledged: * maximum punishment * he understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Under Other Than Honorable Conditions Discharge Certificate * if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law * he elected to not submit a statement on his own behalf f. On 30 December 1987, the immediate commander recommended approval and indicated he had reviewed the request for discharge for the good of the service in the applicant's case and in view of his pending court-martial, he recommended the applicant be issued an under other than honorable conditions discharge. The intermediate commander also recommended approval. g. On 7 January 1988, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service and directed the applicant receive an under other than honorable conditions discharge, and reduction to the lowest enlisted grade. h. On 15 January 1988, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of court martial. His characterization of service is an under other than honorable conditions. He completed 7 years and 1 day of active service. He was awarded or authorized the: * Army Commendation Medal * Army Achievement Medal (w/1 Oak Leaf Cluster) * Army Good Conduct Medal (w/Bronze, 2 Loops) * NCO Professional Development Ribbon (Numeral 2) * Army Service Ribbon * Overseas Service Ribbon (Numeral 1) * Expert Marksmanship Qualification Badge with Rifle Bar i. 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. On 13 December 2005, the Army Board for Correction of Military Records denied his request to have his discharge upgraded from other than honorable conditions to an honorable discharge. 6. By regulation (AR 635-200), chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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. 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 applicant being an NCO at the time of the misconduct and having a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation was appropriate. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 15 January 1981 to 5 September 1983.” 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. 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 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7 (a) (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 3-7(b) (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. 3. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 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) AR20180012511 5 1