IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190001466 APPLICANT REQUESTS: The applicant requests an upgrade of his discharge and his service to reflect the full 180 day period required to reflect veteran status. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Social Security Administration Disability document 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 requests the period of service to reflect the full 180 day period required to reflect veteran status, as this period had been served if not for being taken away by the military for misconduct. His alleged misconduct was due to the disease of alcoholism in which he suffered but was never treated for diligently and properly by the Department of Defense and U.S. Army. The U.S. Army was completely aware of his problematic disease of addiction. b. He suffered from the disease of alcoholism which was never addressed by his chain of command or the Army which therefore resulted in the negative narrative reason for separation and the unjust time lost. After his separation he was medically diagnosed and treated for his disease of alcoholism. He also adds that he suffered an injury during his enlistment which was service connected to the right calf which required a lengthy hospital stay. He still suffers from this injury. c. In support of his request he provides a Social Security Administration findings of fact and conclusions of law that shows: * he has not engaged in substantial gainful activity since 29 January 2016 * he suffers from the severe impairments of post fractured left clavicle, degenerative disc disease of the cervical spine, seizure disorder, and post knee arthroscopy and foot fusion; the impairments limited him from performing basic work activities 3. On 25 November 1987, the applicant enlisted in the U.S. Army Reserve and further enlisted in the Regular Army on 14 January 1988. His service record shows: a. He was counseled on multiple occasions for: * dereliction of duty * being disrespectful to a noncommissioned officer * unacceptable attitude and behavior * failing a room inspection b. He committed the offenses of: * not having insurance * writing several “bad checks” * driving while his license was suspended * failing to appear in court * losing government property * damaging government property (kicking in a window) and being drunk and disorderly 4. On 25 July 1988, the applicant received non-judicial (NJP) under the provisions of Article 15 of the Uniformed Code of Military Justice for failing to be at his appointed place of duty during an alert muster, and failing to furnish a working telephone number for contact in case of an alert. He elected not to appeal. 5. The evidence of record shows an investigating officer (IO) was appointed to investigate the line of duty status of the applicant. The IO’s findings were not in the line of duty, due to own misconduct. 6. In a statement, the applicant acknowledged that he was aware of the findings made by the investigating officer of not in line of duty due to own misconduct, and he had been advised of his rights. He did not wish to add any further information to the line of duty investigation. 7. On 5 December 1988, he received NJP for willfully damaging government property by kicking a barrack room window. His punishment consisted of reduction in rank, restriction, and extra duty. He elected not to appeal. 8. On 20 January 1989, an approved Report of Investigation Line of Duty and Misconduct Status shows on 6 November 1988, the applicant while intoxicated kicked in a glass window, which resulted in him suffering a laceration of his right posterior calf and gastrocnemius Achilles tendon. After reviewing all of the evidence it was determined the applicant sustained his injuries to himself without regard for personal safety. Therefore, the findings were not in the line of duty, due to his own misconduct. 9. On 25 January 1989, a final Criminal Investigation Division Report revealed the applicant admitted to stealing another Soldier’s check from his car, and forging and negotiating the check. 10. On 15 February 1989, he received NJP for stealing and forging another Soldier’s check. He elected not to appeal. 11. On 22 February 1989, a Bar to Reenlistment Certificate was approved and imposed against the applicant based on his record of NJP, CID Report of forgery and larceny, and reports of writing bad checks. He did not desire to submit a statement in his own behalf. 12. On 28 March 1989, the applicant was notified by his commander of his intent to initiate separation action against him under the provisions of paragraph 14-12b of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for a pattern of misconduct. a. The commander cited he was recommending the applicant for elimination based on failed attempts to make him a useful Soldier. The applicant had been given every opportunity to improve his conduct/duty performance. The applicant was counseled to no avail. The applicant had a poor attitude and had no desire to improve himself. All attempts toward rehabilitating the applicant were met with negative results. The applicant was advised of his rights and consulted with counsel. b. He was advised by counsel of the basis for his contemplated separation action, its effects, and the rights available to him. c. He elected to submit statements in his own behalf and stated in pertinent part, since pending chapter 14 previously and now being put on chapter 14 status again for the same reasons has been nothing more than another form of military harassment by his chain of command. He requested a rehabilitative transfer, which by Army Regulation was mandatory if a Soldier has not previously had a rehabilitative transfer. The rehabilitative transfer would enable him a fresh start without prejudgment based on mistakes. He also stated that his commander made false statements on a DA Form 2496 (Disposition Form) for ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) which he went to under self-referral. d. His commander stated that the applicant had not received a rehabilitative transfer. The commander requested that the requirements for a rehabilitative transfer be waived based on the fact that all attempts to make the applicant a useful soldier had failed. Further attempts to improve his integrity were not likely to succeed. The applicants problems would be detrimental to the gaining unit. e. His chain of command recommended he be discharged for misconduct and issued a General Discharge Certificate. The chain of command also recommended a waiver of rehabilitative transfer based on a severe pattern of misconduct which indicated a rehabilitative transfer would not be effective. f. The separation authority approved his discharge and directed he be issued a General Discharge Certificate. 13. On 26 April 1989, the applicant was discharged. He completed 1 year, 1 month, and 19 days of his enlistment. The DD Form 214 he was issued shows he was discharge under the provisions of paragraph 14-12b, AR 635-200, under honorable conditions. He had lost time from 6 November to 2 December 1988 and 8 December 1988 to 3 January 1989. 14. Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran's benefits; however, the Army preserves a record of it to explain which service between the date of entry on active duty and the date of separation is creditable service. Enlisted members are required to make up lost time who deserts; is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. 15. Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 16. Army Regulation 635-200, chapter 14 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, and abuse of illegal drugs. The regulation states requirement for a rehabilitative transfer may be waived by the separation authority at any time on or before the date the separation authority approves or disapproves the separation. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 17. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense 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 regarding alcoholism, his record of service to include creditable service and lost time, the frequency and nature of his misconduct, a bar to reenlistment, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors and the applicant provided no evidence of post-service achievements or reference letters 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. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 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, and abuse of illegal drugs. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. This regulation 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. c. The regulation also states the requirement for a rehabilitative transfer may be waived by the separation authority at any time on or before the date the separation authority approves or disapproves the separation. 4. 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. 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, 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. 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. 5. Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran's benefits; however, the Army preserves a record of it to explain which service between the date of entry on active duty and the date of separation is creditable service. Enlisted members are required to make up lost time who deserts; is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. ABCMR Record of Proceedings (cont) AR20190001466 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190001466 8 ABCMR Record of Proceedings (cont) AR20190001466 6