BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20180014407 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 31 August 2018 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, in effect, since he was discharged he has put two children through college and has worked for the Department of Rehab and Corrections for 12 years. He had set backs but worked through them by receiving care and treatment from the VA and mental health. He is currently 90% service-connected [disabled]. He graduated from Shawnee State University with a B.A. in Social Science and Psychology. He and his wife have been in a stable relationship for 26 years. 3. The applicant enlisted in the Regular Army on 16 October 1986. He attained the rank/grade of specialist/E-4, and extended his enlistment on 25 July 1988. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following offenses: * on 7 December 1989, for failure to repair and failure to obey an order or Regulation; his punishment included a 14 day restriction * on 15 December 1989, for breaking his previously imposed restriction, on or about 9 December 1989; his punishment included a suspended reduction to the grade of E-3, extra duty and further restrictions * on 14 January 1990, for operating a passenger car while drunk in Germany, on or about 14 January 1990 * on 31 January 1990, for failing to be at his appointed place of duty and lying to a noncommissioned officer 5.. The applicant’s service record contains a DA Form 3822-R (Report of Mental Status Evaluation) that shows he received a command-directed mental status evaluation on 19 April 1990. The evaluation showed he: * had the mental capacity to understand and participate in the proceedings * was mentally responsible * met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 * he was screened by the Division Mental Health, 3rd Armor Division, on a Command Referral * his Mental Status Report was within normal limits * he denied any suicidal or homicidal ideations and no psychosis was noted * he was psychiatrically cleared for any administrative actions deemed appropriate by Chain of Command 6. The applicant's commander notified the applicant on 22 May 1990 of his intent to initiate separation actions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, and the rights available to him. The commander cited the applicant's receipt of a field grade Article 15 for driving while intoxicated; a company grade Article 15 for breaking restriction; and two summary Article 15s for not being at his appointed place of duty. He acknowledged receipt of the commander's notification memorandum the same day. 7. The applicant consulted with counsel on 23 May 1990 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He elected to submit the following statement in his own behalf, on 24 May 1990: I am pending separation under AR 635-200 Chapter 14-12c. I am writing this letter in an effort to receive an honorable discharge. My MOS is 19E. I will have been on active duty for four years as of 16 October 1990. I have held many positions such as a tank Loader, driver, gunner as well as a position in the 3d Brigade S-3 shop. I have received a good conduct medal as well as Gold coins from General S_ and General J_. In addition, I have qualified expert with a .45 caliber four times, the M60 coax machinegun once, and have qualified with the M2 .50 caliber machinegun. I have always maxed my Physical Training Tests since basic Training. I am a certified Combat Lifesaver. These achievements and accomplished demonstrate my proficiency and willingness to be a good Soldier. The reason I would respectfully ask for an Honorable Discharge is that even though I have been in some trouble lately, I would ask that you consider my prior accomplishments. Also, this last year has been very difficult for me since my wife had to leave Germany due to severe Rheumatoid Arthritis. The military has been a valuable experience for me. I wish that I could be leaving under better circumstances. However, I will be leaving the military with new skills, strengths, and confidence. I thank you for taking the time to consider my request for an Honorable Discharge. [Applicant Signed] 8. The applicant's commander formally recommended his separation prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of his patterns of misconduct. He cited the aforementioned reasons for his recommendation. 9. The applicant's intermediate commander recommended approval his separation, under the provisions of Army Regulation 635-200, paragraph 14-12b, for his patterns of misconduct. He also recommended a general discharge, and that the applicant not be transferred to the Individual Ready Reserve (IRR). 10. The 3rd Armored Division legal staff reviewed the applicant's administrative separation action on 30 May 1990 and found it legally sufficient to discharge him in accordance with Army Regulation 635-200, Chapter 14, paragraph 14-12b. 11. Consistent with the commanders' recommendations, the separation authority approved the applicant's discharge on 30 May 1990, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct, and directed that he be issued a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 9 July 1990. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct." His service was characterized as under honorable conditions (general). 13. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, applicant’s military records, and the VA’s Joint Legacy Viewer (JLV) and made the following findings and recommendations: The Armed Forces Health Longitudinal Technology Application (AHLTA), & Health Artifacts Image Management Solutions (HAIMS) did not exist at the time of the applicant’s service. The applicant does not have any records in iPERMS. The applicant has a service connected disability rating of 100% with 100% for PTSD, 30% for migraine headaches, 20% for cervical strain, and 10% for tinnitus and limited flexion of knee. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance, there is documentation to support a behavioral health condition at the time of his discharge. The applicant was evaluated and found to meet retention standards at the time of his discharge. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance, PTSD is considered a mitigating factor for the misconduct that led to his discharge. 14. The Board should consider the applicant’s complete service record, and post service accomplishments in support of his request, in accordance with the published equity, injustice, or clemency determination guidance. 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, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board concurred with the advisory official who found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board found 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 9 July 1990 showing his character of service as honorable and the narrative reason as secretarial authority. 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 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 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if 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) AR20180014407 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180014407 6 ABCMR Record of Proceedings (cont) AR20180014407 5