ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20180013853 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. 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), with self-authored statement 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 told his discharge would be upgraded to an honorable discharge in 10 years and it has been 31 years. He didn’t realize what he was really signing. He served in Korea for 1 year and 1 day and believed he was honorably discharged. 3. The applicant enlisted in the Regular Army on 15 January 1986. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 24 February 1987, for absenting himself from his unit at Camp Hovey, Korea, on or about 18 February 1987. b. On 28 April 1987, for wrongfully possessing an unauthorized military pass; assaulting a military police (MP) law enforcement officer in the execution of official duties; unlawfully carrying a concealed weapon [9 inch butterfly knife]; and failing to obey a lawful order from an MP officer, on or about 23 April 1987. 5. The applicant's service records contains the following: * DA Form 3975 (Military Police Report), which shows the applicant was arrested for "Civil Burglary 2" on 26 June 1987 * Pierce County Sheriff Office – General Report, which provides further detail on how he broke into a fellow Soldiers apartment while he was in the field and stole his property * DA Form 3822 (Report of Medical Status Evaluation), dated 2 July 1987, which shows he had the mental capacity to understand and participate in discharge proceedings 6. The applicant's commander notified the applicant on 15 July 1987 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (Commission of a Serious Offense), by reason of a serious offense, either under the UCMJ or civilian law, which rendered him unqualified for further military service. He acknowledged receipt of the proposed separation notification on the same day. 7. The applicant noted, on 20 July 1997, he had been afforded the opportunity to consult with counsel vis-à-vis his separation under the provisions of Army Regulation 635-200, paragraph 14-12c. He elected not to consult with counsel; nevertheless, he was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. a. He acknowledged he may encounter substantial prejudice in civilian life if he received a UOTHC discharge. He indicated he did not desire to submit a statement in his own behalf. b. He was further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. 8. The applicant's commander formally recommended his separation on 21 July 1987, under the provisions of Army Regulation 635-200, paragraph 14-12c (Commission of a Serious Offense), based on his demonstrated inability or unwillingness to meet acceptable standards required of enlisted personnel in the Army. His commander cited his: commission of a serious military or civilian offense; his conduct prejudicial to the good order and discipline of the Army; and his failed response to formal counseling. 9. The applicant's battalion commander endorsed the recommendation the same day. Both commanders recommended the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of the applicant's pending civil or military charges. Both commanders recommended he receive an under other than honorable conditions discharge. 10. The separation authority approved the applicant's discharge on 22 July 1987, by reason of a commission of a serious offense, and directed that he be issued a General Discharge Certificate. 11. The applicant was discharged on 3 August 1987, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – patterns of misconduct. His DD Form 214 shows his service was characterized as under honorable conditions (general). His DD Form 214 further shows in: * Item 12c (Record of Service – Net Active Service This Period), he was credited with completing 1 year, 6 months, and 19 days of net active service this period * Item 12f (Foreign Service), he was credited with completing 1 year, and 1 day of foreign service * Item 28 (Narrative Reason for Separation), the entry "Misconduct – pattern of misconduct” * Item 29 (Dates of Time Lost During this Period), the entry "870625-870723" 12. In reaching its determination, the Board should consider the applicant’s statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION The Board considered the applicant's request, supporting documents and published DoD guidance for consideration of discharge upgrade requests. After review of the application and all evidence, the Board determined there were no mitigating factors and there is insufficient evidence to grant relief. BOARD VOTE Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant : X :X :X Deny 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. 7/10/2019 X . CHAIRPERSON Signed by: 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): N/A 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 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 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. 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 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). 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 UOTHC 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//