ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180016829 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 from the Armed Forces of the United States), dated 20 September 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 his first sergeant gave him the choice to leave so he left. He was young and not ready to mature at the time. He also had medical issues such as stress fractures, flat feet, and mental instability. His stress fractures were the result of running while in the military. He does not expect full benefits but is dealing with certain issues and this is one of the ways to help him move on in life. He is a single parent with three children. 3. The applicant enlisted in the Regular Army on 6 August 1992. 4. The applicant was formally counseled on six separate occasions between 24 December 1992 and 27 April 1993, for reasons including but not limited to: sleeping on duty, failure to repair, a security violation, and a room inspection failure. 5. The applicant's commander referred the applicant for a mental status evaluation on 28 January 1993. The examining official determined he was mentally capable to understand and participate in proceedings deemed necessary. 6. The applicant accepted non-judicial punishment on 27 April 1993, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty, on or about 16 February 1993, and for failure to obey a lawful regulation, on or about 16 April 1993. 7. The applicant received a medical examination on 19 May 1993. 8. The applicant's immediate commander notified the applicant on 3 June 1993 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for violating a general regulation by leaving port without an authorized pass. 9. The applicant consulted with counsel on 7 June 1993 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He elected not to submit statements in his own behalf. 10. The applicant's commander formally recommended the applicant's separation, under the provisions of Army Regulation 635-200, paragraph 14-12c. The separation authority approved the recommended discharge on 11 June 1993 and directed that he be issued a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 23 June 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. His service was characterized as under honorable conditions (general). 12. The ARBA Medical Advisory provided the following findings and recommendations: Based on the time of the applicant’s service there are no records available in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or the Health Artifacts Image Management Solutions (HAIMS). The limited documentation available in the VA's Joint Legacy Viewer (JLV), is not relevant to this case. The applicant received a general discharge under honorable conditions IAW AR 635-200, Chapter 14- 12(c), for misconduct – commission of a serious offense. He is requesting an upgrade in his discharge based on multiple medical factors, including flat feet that were present prior to his service, bilateral shin splints, and mental instability. A Command-directed mental status evaluation was performed on 23 January 1993 that determined the applicant was mentally responsible for his actions, he met retention standards IAW AR 40-501, and he was unmotivated to become a productive Soldier. A chapter separation physical exam was completed on 19 March 1993, and did not identify any medically unfitting conditions IAW AR 40-501. There is no other medical information submitted or available for review. Therefore, based on the available medical and behavioral health documentation reviewed, the Agency Medical Advisor finds no medical or behavioral health indication to warrant an upgrade in the applicant’s discharge. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of behavioral health conditions, post-service achievements, or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. X 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. 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//