ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20190000161 APPLICANT REQUESTS: * Upgrade of his general discharge under honorable conditions to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Army Discharge Review Board). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, he has been working for 28 years. More than 23 of those years was spent as a member of a labor union; he has worked his way up from labor to crane operator. 3. The applicant's service records show: a. He enlisted into the Regular Army on 26 January 1982 for a 3-year term; he was 19 years old. On completion of initial training, orders assigned him to Korea; he arrived on or about 5 August 1982. Effective 1 August 1983, while still assigned in Korea, his chain of command promoted him to specialist four (SP4)/E-4. He finished his tour in Korea on 4 August 1983 and orders reassigned him to Fort Carson, CO; he arrived on 9 August 1983. b. Between August and October 1984, during his assignment at Fort Carson, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on three occasions: * 24 August 1984 – stealing another Soldier's tape deck, valued at about $300; punishment included reduction from SP4 to private first class (PFC)/E-3 * 5 October 1984 – sleeping on guard duty * 19 October 1984 – failing to be at his room for inspection; the imposing officer suspended his reduction to private (PV2)/E-2; on 19 November 1984, the reduction was vacated because he failed to report for extra duty c. On 29 November 1984, the applicant's Fort Carson commander initiated a bar to reenlistment action against him. The commander based the bar on the applicant's above-cited NJP actions and five counseling statements, dated from July until October 1984. The battalion commander subsequently approved the bar to reenlistment. d. On 14 December 1984, the applicant's commander advised him in writing of his intent to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct). The commander's reasons were the applicant's pattern of misconduct, as demonstrated by the applicant's theft of private property and his failure to be at his appointed place of duty; the commander stated efforts by leadership (i.e. NJP and counseling statements) had been ineffective. e. On 17 December 1984, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for this action, his available rights, and the effect of waiving those rights. He affirmed, in the event the special court-martial convening authority acted on his discharge, and because he had less than 6 years of total active military service, he was not entitled to have his case heard by, and to personally appear before a board of officers. He further indicated, if the general court- martial convening authority took action, he was requesting both a personal appearance with counsel and the adjudication of his case by a board of officers. He elected not to make a statement in his own behalf. f. On 15 January 1985, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions. g. On 23 January 1985, the applicant accepted NJP for operating a passenger car while drunk; the imposing officer reduced him to private/E-1. h. On 24 January 1985, the applicant was separated with a general discharge under honorable conditions; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months, and 29 days of his 3-year enlistment. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, and a marksmanship qualification badge. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant essentially argues he has been a productive member of his community and achieved significant accomplishments. a. Regulatory guidance in effect at the time required commanders to initiate separation action against Soldiers who displayed a pattern of misconduct; this included when they committed acts of discreditable involvement with civil or military authorities and/or conducted themselves in a manner that was prejudicial to good order and discipline. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s 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 and the reason for his separation. The Board found insufficient evidence if in-service mitigation of the misconduct. The applicant made a statement but provided no additional evidence of 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. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 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 on the basis of 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. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. ABCMR Record of Proceedings (cont) AR20190000161 4 1