ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20190000443 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DA Forms 4856 (General Counseling Form), dated 16 November 1990 * Memorandum, dated 11 January 1991, subject: Notification of Recommendation for Discharge Under the Provisions of Chapter 14 (Pattern of Misconduct), with Acknowledgement * Memorandum, dated 11 January 1991, subject: Request for Waiver of Rehabilitative Transfer * statement in his own behalf, dated 23 January 1991 * Memorandum, dated 14 February 1991, subject: Attempting to Submit Matters in a Timely Manner * DA Form 2823 (Sworn Statement), dated 14 February 1991 * chain of command recommendation and approval document * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 March 1991 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 he requested to be transferred to a different unit on multiple occasions but his requests were denied. He wanted a fresh start for his career, to become the good Soldier he enlisted to be. He knew in his heart that a transfer would have been the best option for him. After multiple denials, he felt targeted to be made an example. This ultimately led to his discharge from the Army. He was only punished for his misconduct and was not rehabilitated. 3. The applicant enlisted in the Regular Army on 10 August 1988. 4. The applicant's record contains six DA Forms 4856 (General Counseling Form), dated between October and December 1990, which show he was counseled for being late, missing formation, and cashing checks without sufficient funds. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on: * 30 March 1990, for failure to go at the time prescribed to his place of duty, on or about 12 March 1990 * 3 July 1990, for failure to go at the time prescribed to his place of duty, on or about 11 June through 13 June 1990 * 10 December 1990, for violating a lawful regulation by having a blood alcohol level above .05 percent, on or about 17 October 1990 6. The applicant's immediate commander notified him on 11 January 1991 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – pattern of misconduct. His commander cited, as the specific reason for the proposed separation, his habitual failure to repair and driving while intoxicated. 7. After consulting with counsel, the applicant was advised of the basis for the contemplated action to separate him and of the rights available to him. He further acknowledged his understanding and provided a statement in his own behalf, dated 23 January 1991, wherein he stated: * he was determined to prove to himself and supervisors that he could be an asset * he had paid for all the rules that he had broken * it was impossible to come back to his battalion, he would like to be reassigned * he had requested enrollment in alcohol rehabilitation but was never put in a program 8. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The separation authority approved the recommended action on 25 February 1991 and directed the issuance of a general discharge. 9. The applicant was discharged on 12 March 1991. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct. His service was characterized as under honorable conditions (general). 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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// ABCMR Record of Proceedings (cont) AR20190000443 4 1