ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20180013742 APPLICANT REQUESTS: an upgrade to his discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismiss from the Armed Forces of the United States) 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. 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 AR1999015539 on 5 February 1999. 3. A review of the applicant’s service record shows: a. On 15 March 1972, he enlisted in the Regular Army and he reenlisted on 7 November 1974. b. On 28 January 1985, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for without authority for failing to go at the time prescribed to your appointed place of duty. c. On 13 March 1984, he received a letter of reprimand for suspicion of driving while impaired with a blood alcohol content of 0.17. d. On 1 February 1985, criminal charges were pending on civil charges of sexual misconduct with a minor and a warrant for his arrest was issued by the Cumberland County Sheriff. The charges were first degree sexual offense, indecent liberties with a minor, and attempted statutory rape. e. On 21 February 1985, he underwent a mental status evaluation that cleared him psychiatrically for administrative actions deemed appropriate by his chain of command. f. On 12 February 1985, separation proceedings were initiated for the commission of a serious offense (Misconduct-Commission of a Serious Offense) under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14-12c. His immediate commander recommended a general discharge. g. On 12 February 1985, he consulted with legal counsel. He was advised of the basis for the contemplated action to separate him for misconduct. He requested to waive consideration by or appearance before a board of officers and declined making a statement on his own behalf. h. On 21 March 1985, consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 and directed the issuance of a General Discharge Certificate. i. On 29 March 1985, he was discharged from active duty under the provision of AR 635-200, chapter 14-12c (Misconduct – Commission of a Serious Offense). He completed 10 years, 2 months and 17 days of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded/authorized the: * Army Service Ribbon * Good Conduct * Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar 4. The applicant applied to the Army Discharge Review Board and it was determined that he was properly and equitably discharged. His request was denied on 5 February 1999. 5. 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 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 serious, criminal nature of the misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that the applicant had a period of prior honorable service which was not currently reflected on his DD Form 214 and recommended that change be made 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 7 November 1974 until 25 February 1981.” 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. a. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. 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. Paragraph 14-12c, as in effect at the time, states members are subject to separation under this provision when they commit a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Courts-Martial (drug offenders). 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 (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) AR20180013742 4 1