BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180012966 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge and that his narrative reason for separation be changed to eliminate any reference to misconduct. 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 4 October 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 August 1985 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 was discharged due to a breach of his contract, as well as frequent moves and financial challenges caused by changes to his military occupational specialty. His wife could not handle Army life and her grandmother got her Member of Congress involved after they called the post commander. He was only 19 years old and overwhelmed with what was going on, with a new born child to support. He completed everything he was requested to do before he was separated from the Army. 3. The applicant enlisted in the Regular Army on 15 September 1983. He completed training as a motor transport operator. 4. The applicant received a Letter of Reprimand on 14 February 1984 for issuing worthless checks. According to the letter: * he wrote a check at the Fort Gordon Main Post Exchange on 22 January 1984, for $10.00, which was returned due to insufficient funds * he wrote a check at the Fort Gordon Main Post Exchange on 23 January 1984, for $10.00, which was also returned due to insufficient funds * he wrote a check to the Post Barber Shop on 18 January 1984 for $3.15, which was returned due to insufficient funds * he wrote a check to the Morale Support Fund for the amount of $1.00, which was returned due to insufficient funds The applicant was told that the issuance of worthless checks is prohibited under Federal and military law and that such actions are unbecoming of a Soldier in the U.S. Army. He was told that those incidents project an image detrimental to him and the battalion and as a Soldier, he was expected to be able to manage his financial affairs and avoid situations that might bring discredit upon himself as well as the U.S. Army. 5. A DA Form 4856-R (General Counseling Form) shows the applicant was counseled on at least five separate occasions between 14 February 1984 and 20 June 1985, for the following acts of misconduct: * receiving a Letter of Reprimand for writing worthless checks * being absent from his place of duty * sleeping on duty * accepting nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for sleeping on duty * getting a traffic ticket on post (no post registration and no insurance) * making a fraudulent claim against the Government * failing to meet standards of Army Regulation 670-1 * writing a dishonored check * receiving a Notification of Indebtedness (due to the dishonored check) * having a delinquent loan from the Community and Family Support Division * receiving numerous counseling on responsibility and, financial and family matters * failing to respond to intensive counseling by his chain of command He was advised that he had a pattern of irresponsible behavior and misconduct and he was being recommended for a general discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14. He was also told that this type of discharge could cause substantial prejudice in civilian life. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: a. On or about 2 November 1984, for being found sleeping on guard duty, on or about 26 October 1984. b. On 26 June 1985, for stealing $597.00, property of the U.S. Government, on or about 20 April 1985, and for making and uttering false checks to the Main Exchange and Commissary totaling $121.47, on or about 13 May and 30 May 1985, and for dishonorably failing to maintain sufficient funds in the credit union for payment of such checks in full. c. On 3 July 1985, for failing to go at the time prescribed to his appointed place of duty, to wit: Extra Duty, on or about 29 June 1985. 7. The applicant's commander notified the applicant on 15 July 1985 that he was initiating actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, for an established pattern of misconduct. The applicant acknowledged receipt of the proposed separation notification memorandum. 8. The applicant consulted with counsel on 15 July 1985 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 and he acknowledged that he was not eligible for a personal appearance or consideration of his case by a board of officers. He elected not to submit a statement in his own behalf. 9. The applicant's commander formally recommended his separation on 15 July 1985, under the provisions of Army Regulation 635-200, paragraph 14-12b. 10. The separation authority approved the recommended discharge on 13 August 1985, under the provisions of Army Regulation 635-200, Chapter 14, and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 22 August 1985, 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 board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate for 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) AR20180012966 4 ABCMR Record of Proceedings (cont) AR20180012966 1