ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20180013925 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 293 (Application For The Review of Discharge From The Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * Self-Authored Statement (Written on second DD Form 293) 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 that the charges brought against him are not true. He states that on the day of the offense his duty was the duty of Post Police and he was instructed to pick up two privates from their Basic Training Unit. Throughout the middle of the day, it was hot so he pulled over and instructed the privates to exit the truck to take a ten minute break with their canteens. The next day the applicant states that he was called into the Captain B’s office and he was told that the privates stated that he was asleep while pulled over. The applicant states that while he tried to explain what happened, Captain B told him that he did not want to hear his explanation and the next thing was he was given an under honorable conditions discharge. He regrets that he did not take a stand on the matter before now to receive an honorable discharge or maintain his position in the Army. 3. A review of the applicant’s record shows: a. He enlisted in the Regular Army on 17 January 1990. He reenlisted into the Regular Army on 15 June 1992. a. b. He served in Saudi Arabia from 13 December 1990 to 29 June 1991. c. On 22 July 1993, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) commission of a serious offense – abuse of illegal drugs. d. He acknowledged receipt of the notification of the separation action, after consulting with legal counsel, he further acknowledged: * the basis of the contemplated separation, the rights available to him, and the effect of any action taken by him in waiving his rights * he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he would be ineligible to apply for enlistment in the Army for 2 years after discharge: e. The applicant elected to submit a statement on his behalf, he stated: * he requested disapproval of the separation or a suspended separation * he served in Germany for 15 months * his goal has always been to do the very best that he could * he was sorry for the incident he was being chaptered for * he accepts responsibility and ensured it would never happen again * if possible, he would like to remain on active duty and if not possible he requested an honorable discharge f. On 23 July 1993, the immediate commander initiated recommendation for separation under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel) Chapter 14, paragraph 14-12 for misconduct – commission of a serious offense. He indicated that despite attempts to rehabilitate or develop as a Soldier, the future effort of the Soldier is unlikely to succeed. g. On 16 August 1993, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of chapter 14, AR 635-200, paragraph 14-12c, with the applicant's service characterized as general, under honorable conditions. h. On 31 August 1993, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 14 paragraph 14-12c, due to misconduct and he received a characterization of service of under honorable conditions (general) a. and a separation code of JKQ. He completed 3 years, 7 months, and 14 days of active service. It further shows that he was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Southwest Asia Service Medal with 3 bronze service stars * Overseas Service Bar * Army Commendation Medal * Kuwait Liberation Medal-Saudi Arabia * Drivers Badge * Army Achievement Medal (2nd Award) * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Hand Grenade Badge 4. By regulation, Soldiers are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances warrant separation and a punitive discharge would be authorized for the same or closely related offense. Abuse of illegal drugs is serious misconduct. 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 relief is not warranted. 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 misconduct and the applicant already receiving a general discharge, the Board determined that there was insufficient evidence to show an error or injustice which would warrant making a change to the applicant’s characterization of service. However, prior to closing the case, the Board noted that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 21 and recommended that change be completed to more accurately depict the applicant’s 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 17 January 1990 until 14 June 1992.” 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.. 7/17/2019 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. 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 para 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of 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. 3. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until 15 June 1992. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate 1. 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS//