ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180015625 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge to honorable * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * photo 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 believes his discharge is unjust due to the facts surrounding the circumstances. He was sent home early due a field injury and upon entering his home, he found two non-commissioned officers (NCOs) in bed with his wife and another NCO on the sofa. In a fit of rage, he attacked the NCOs. b. After the incident, he was moved into the barracks and told that the Army would handle the situation. His wife left him and moved in with one of the NCOs. He had to work these NCOs daily and he fail into a great depression and began to drink and use marijuana. He regrets how he handled the situation (see attached self-authored statement). 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 18 March 1994. b. On 7 August 1995, the applicant completed the Anger Management and Control Group sessions satisfactorily. c. On 18 August 1995, the applicant accepted non-judicial punishment (NJP) for wrongful use of marijuana on or about 4 June 1995. He was reduced to E-1, forfeiture of pay $400.00 for two months, 45 days extra duty and 45 days restriction. d. On 1 September 1995, his immediate commander initiated an elimination packet on the applicant. e. On 27 September 1995, the applicant accepted NJP for breaking restriction and striking his wife on or about 3 September 1995. He received 14 days restriction, 14 days extra duty and forfeiture of pay $199.00 for one month. f. On 3 October1995, his immediate commander notified he applicant that he was initiating a separation action against him under the provisions (UP) of Army Regulation (AR) 635-200, paragraph 14-12c (Commission of a Serious Offense). g. On 3 October 1995, his immediate commander recommended the applicant for separation. h. On 5 October 1995, he acknowledged receipt of the immediate commander’s decision to recommend him for separation. He consulted with legal counsel and was advised the basis for the contemplated action to separate him for commission of a serious offense. He was also acknowledged/understood: * advised of his right to submit a condition waiver of his right to have his case considered by an administrative separation board * he waived his personal appearance before an administrative separation board * he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded i. On 20 October 1995, consistent with the chain of command recommendations, the approval authority approved the separation UP the provision of AR 635-200, 14-12c, and issued an Under Other than Honorable Conditions Discharge Certificate. j. The applicant was discharged from active duty on 27 October 1995. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12c with a under other than honorable conditions characterization of service. He completed 1 year, 7 month and 10 days of active service. k. His DD Form 214 shows he was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar 4. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 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. 6. In regards to the applicant’s request for an appearance before the Board, AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the relatively short term of service completed prior to a pattern of misconduct, which included violent misconduct against other Soldiers and a lack of character evidence submitted by the applicant to show that he has learned and grown from the events which led to his discharge, the Board concluded that the characterization of service received at the time of discharge was 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. 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. All Soldiers must be processed for separation after a second offense. b. Paragraph 3-7a (Honorable Discharge) an honorable discharge is a separation with honor. 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. c. Paragraph 3-7b (General Discharge) 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. 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) AR20180015625 4 1