ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20180013400 APPLICANT REQUESTS: an upgrade of his general discharge under honorable conditions to honorable. 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) * City of El Paso Open Records Request, dated 6 February 2017 * Character-Reference Letter from E H , dated 9 May 2018 * Self-authored Letter, dated 24 September 2018 * Character-Reference Letter from R S , undated * Enlisted Record Brief REFERENCES: 1. Title 10, U.S Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies standards, and procedures ensure 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 states 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. Paragraph 3-7b 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. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the 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: a. The discharge he received based on serious misconduct was unjust. No misconduct took place to warrant his separation for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. b. He believes separation action was initiated based on the presumption the El Paso Police Department would file charges against him for driving under the influence of alcohol/driving while intoxicated. No military or civilian law enforcement judicial actions were taken against him. He maintains no criminal record. c. At the time of his discharge, he was within 1 year of his contractual separation and was injured with a left clavicle fracture. d. An upgrade of his discharge will allow him to use Post-9/11 GI Bill educational benefits and open up employment possibilities. 3. His records do not contain the specific facts and circumstances surrounding his separation processing. His discharge packet is not available for review. 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 12 February 2015 by reason of misconduct (serious offense) under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed 5 years, 3 months, and 4 days of active service during this period. His rank/grade is shown as specialist/E-4 with an effective date of 9 November 2011. His service was characterized as under honorable conditions (general). 5. On 8 November 2016, the Army Discharge Review Board denied his request for an upgrade of his discharge. The evidence confirmed his separation processing for misconduct was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and he was provided full administrative due process. The board determined the reason for discharge and the characterization of service were proper and equitable. 6. On 10 February 2017 in response to the applicant's request, the City of El Paso Police Department indicated there were no records on file pertaining to the applicant and the events on 1 August 2014. 7. The applicant provided two character-reference letters in support of his request. a. A letter from E H , dated 9 May 2018, states he has known the applicant since 13 March 2017. The applicant has excellent work ethics, shows up for work on time, is willing to stay late whenever needed, and volunteers for difficult assignments. He has great integrity and work ethics, does not miss work or ever calls in sick. He looks for ways to improve the facilities look and upkeep at the work site. He cares about other people and is always willing to step up to help get the job done. b. A letter from R S , undated, states he has known the applicant since March 2017. He has a positive opinion of him. The applicant has always been considerate of others, knowledgeable, helpful, and hardworking. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, the absence of a separation packet, the reason for his separation and whether to apply clemency. The Board found no evidence of in-service disciplinary action related to misconduct. The Board considered the the letters of reference and the law enforcement records provided by the applicant in support of clemency. The Board found sufficient evidence to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that relief was warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 12 February 2015 showing his character of service as honorable and the narrative reason as secretarial authority. X CHAIRPERSON 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. //NOTHING FOLLOWS//