ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20190001838 APPLICANT REQUESTS: in effect: * his under honorable conditions (general) discharge be upgraded to an honorable discharge * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 March 1990, to remove "Misconduct – Pattern of Misconduct" from the narrative reason for separation 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), with a self-authored statement dated 17 January 2019 * DD Form 214, for the period ending 20 May 1985 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 served in the Army for almost 16 years and never got into trouble until his divorce started. Please understand his actions, were a mistake on his behalf and he is seeking an upgrade because of the circumstances that led to his discharge. 3. The applicant enlisted in the Regular Army on 17 June 1974 and was honorably discharged on 27 May 1976 for the purpose of immediate reenlistment. He was issued a DD Form 214 (Report of Separation from Active Duty) that confirms his service during this period was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 28 May 1976, served through several extensions and reenlistments, and attained the rank/grade of sergeant/E-5. 5. The applicant received a letter of reprimand from his immediate commander on 1 February 1988, based on his failure to perform his duties in a proficient and professional manner. 6. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 20 June 1989, for failing to go at the prescribed time to his appointed place of duty, on or about 24 May 1989 (on two occasions) and on or about 15 June 1989 * on 12 January 1990, for making a false statement with the intent to deceive, on or about 15 November 1989, and for being derelict in his duties by failing to provide spousal support, on or about March 1989 through June 1989 7. The applicant's immediate commander notified the applicant on 10 February 1990 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12b, by reason of his pattern of misconduct. The commander cited the applicant's receipt of a Field Grade Article 15 for making a false statement and dereliction of duty, a Company Grade Article 15 for failing to be at his appointed place of duty, and several counseling statements concerning his misconduct and poor duty performance. 8. The applicant consulted with counsel on 12 February 1990 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He indicated he did not desire to submit a statement in his own behalf. He waived consideration of his case by an administrative separation board, contingent upon receiving a characterization of service or description of separation no less favorable than a general discharge. 9. The applicant's commander formally recommended his separation on 14 February 1990, under the provisions of Army Regulation 635-200, Chapter 14, by reason of his patterns of misconduct. 10. The applicant’s service record contain a DA Form 3822-R (Report of Mental Status Evaluation) that shows he was screened by Community Mental Health Services (CMHS) on 15 February 1990 pending his separation. This form contains the following remarks: SGT [applicant] is a 33 year old white married male soldier who was command referred to CMHS pursuant to an administrative separation. IMPRESSION: SM was previously seen at CMHS for serious marital, family and personal problems. His mental status evaluation was within normal limits. SM did not participate in recommended follow- up counseling at CMHS. CONCLUSION: SM is psychiatrically cleared for any administrative action deemed appropriate by Command. 11. The applicant's intermediate commander endorsed the applicant's separation action on 15 February 1990 and recommended he receive a general discharge. 12. The applicant's separation packet was review by the post Judge Advocate’s office and was found legally sufficient on 23 February 1990. 13. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 28 February 1990, under the provisions of Army Regulation 635-200, paragraph 14-12(b) (patterns of misconduct), and directed that he be issued a General Discharge Certificate. 14. The applicant was discharged on 8 March 1990. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct." His service was characterized as under honorable conditions (general). His DD Form 214 further shows in: a. Item 12 (Record of Service), the entries: * 12a (Date entered AD [Active Duty] This Period) – 28 May 1976 * 12c ( Net Active Service This Period) – 13 years, 9 months, and 11 days of creditable service this period * 12d (Total Prior Active Service) – 1 year, 11 months, and 11 days of creditable service * 12f (Foreign Service) – 5 years, and 11 months, and 24 days of creditable service b. Item 18 (Remarks), includes the entry: IMMEDIATE REENLISTMENTS THIS PERIOD: 760528-800227, 800228-851016, 851017-900308. c. Item 26 (Separation Code), the entry "JKM" d. Item 28 (Narrative Reason for Separation), the entry "Misconduct – Pattern of Misconduct." 15. The Board should consider the applicant's overall service record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, in addition to the administrative notes below the signature block, the Board determined that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement. 1. The Board did not find any evidence of error, injustice, or inequity regarding the discharge characterization in that although the applicant had 13 years of generally honorable active service, he had no wartime service, no personal meritorious awards (other than good conduct medals) and the applicant provided no evidence of post- service honorable conduct that might have mitigated the discharge characterization. The Board agreed that in the applicant’s case, the General, Under Honorable Conditions discharge is appropriate. 2. However, regarding the narrative reason, authority, and separation code, the Board agreed that these were too harsh for the circumstances as most of the applicant’s service was generally honorable. Therefore, the Board found that the narrative reason, authority, and separation code should be amended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes of the analyst of record found below the signature block the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board determined the evidence presented is insufficient to warrant a portion of the requested relief and recommends denial of so much of the application that pertains to upgrading the applicant’s discharge characterization. 2. However, the Board determined the evidence presented is sufficient to warrant a portion of the requested relief and recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s a DD Form 214 for the period ending 8 March 1990 showing: a. the separation authority (item 25) as “AR 635-200, para 5-14,” b. a separation code (item 26) of ““JND”.” c. and the narrative reason (item 28) as “Miscellaneous/General Reasons” 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): A review of the applicant's record shows his DD Form 214, for the period ending 8 March 1990, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 760528 UNTIL 851016 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. Paragraph 3-7b provides that 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. c. 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) AR20190001838 6 1