BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20180013812 APPLICANT REQUESTS: The applicant requests an upgrade of his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. The applicant states: a. He was discharged because his commander wanted him out. He really does not know why. He knows that he was late to formation, but all he received was summarized an Article 15, under the provisions of the Uniformed Code of Military Justice. He got better as time went on. He went through Air Assault School and it was not good enough. When he came back from leave they reduced him from the rank of specialist/E-4 for no reason, and then he asked to be discharged. b. He changed his mind, but they [his command] wanted him gone. He knows it has been 30 years; however, he feels it was unjust that he was discharged. He had no drug problem or drinking problem. He is asking if it is possible to change his discharge, because it would be nice to he got an honorable discharge. He will be okay with whatever the Board decides. 3. On 16 June 1987, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 18 October 1988, he received non-judicial punishment (NJP) for missing formation. 5. A review of the applicant’s record shows he was counseled on multiple occasions for: * disobeying and disrespecting a noncommissioned officer (NCO) * smashing an NCO’s hat * lying to an NCO * missing formations * failing to be at his appointed place of duty * being late to perform extra training * below standard performance * disobeying a lawful order 6. On 24 May 1989, a recommended Bar to Reenlistment was approved and imposed against the applicant. He elected not to appeal. 7. On 8 June 1989, the applicant received NJP again for underage consumption of alcohol. He had disobeyed a lawful order. 8. On the same date, he was medically cleared for administrative separation. A mental status evaluation for chapter 14 separation psychiatrically cleared him for any administrative proceeding deemed appropriate by his chain of command. 9. On 13 July 1989, the applicant's commander notified the applicant that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, for pattern of misconduct. The commander cited the applicant's failed attempts to become a useful Soldier, multiple counseling, and all attempts toward rehabilitating him had met with negative results. a. The applicant consulted with counsel. He was advised of the basis for the contemplated action to accomplish his separation for misconduct, its effects, and the rights available to him. b. His chain of command recommended approval of his administrative separation with a general, under honorable conditions character of service, and to waive rehabilitative transfer requirements. c. Consistent with the chain of command’s recommendation, the separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate. 10. On 15 August 1989, the applicant was discharged accordingly. He completed 2 years and 2 months of net active service. He was not awarded a personal decoration. 11. Army Regulation 635-200, chapter 14 provides that a Soldier may be separated from the Army for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 12. The Board should consider the applicant's overall record and the statement he provides 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. 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 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. The regulation states 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 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. 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) AR20180013812 2 ABCMR Record of Proceedings (cont) AR20180013812 1