ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190004199 APPLICANT REQUESTS: The applicant requests his service characterization of under other than honorable conditions (UOTHC) be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 he was drinking when he had problems as well with other military personnel. He has changed; hasn’t been in any trouble since his discharge. 3. On 22 March 1979, the applicant enlisted in the Regular Army for three years at the age of 19. 4. On 7 October 1980, he received non-judicial punishment (NJP) for willfully disobeying a superior commissioned officer. 5. On 25 October 1980, he received NJP for failing to be at his appointed place of duty at the prescribed time on two separate occasions. 6. On 17 March 1981, the applicant was barred from reenlisting for: * Failing to go to the appointed place at the appointed time * Demonstrating a negative attitude towards the Army and the authority of his superiors * Not being dependable to get the simplest job done or task without constant supervision * Repeated counseling met with negative results 7. On 15 May 1981, the applicant was notified by his commander that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) paragraph 14 misconduct due to alcohol or other drug offenses and patterns of misconduct. a. The applicant acknowledged being notified for the contemplated separation action against him; he was made aware of his available rights and consulted with legal counsel. b. The applicant’s commander recommended he be discharge under the provisions of AR 635-200, Chapter 14-33a (2) for alcohol or other drug offenses, Chapter 14-33b (1) for patterns of misconduct; frequent incidents of discreditable nature with civil or military authorities. 8. On 2 June 1981, his Battalion Commander recommended approval and he receive a general discharge certificate. 9. On 22 June 1981, the Brigade Commander recommended approval and stated, “Unfortunately, the initial search and apprehension were conducted by an overzealous NCO without first obtaining authorization from the unit commander. Consequently, PV2 W could not be prosecuted by a Court-Martial. A confessed drug dealer has no place in the Army.” 10. On 9 July 1981, the appropriate approval authority approved the recommendation for discharge of the applicant and directed he be reduced to the lowest enlisted grade and issued an UOTHC discharge certificate. 11. On 24 July 1981, the applicant was discharged accordingly. He completed 2 years, 4 months, and 3 days. 12. The applicant states he was drinking when he had problems as well with other military personnel. He has changed; hasn’t been in any trouble since his discharge. His records showed the highest rank he held was Specialist (E4). 13. AR 635-200, Chapter 14 separates members who demonstrate or display patterns of misconduct, as evidenced by his multiple instances of misconduct and counseling. Paragraph 1-18 states, Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not product a quality Soldier. 14. 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 discussed the applicant’s service record, the frequency and nature of his misconduct, the bar to reenlistment, the reason for his separation and whether to apply clemency. The Board considered the applicant’s statement, but found no other mitigating factors in the record and the applicant provided no additional related to post-service conduct or achievements in support of clemency. The Board determined that the character of service the applicant received upon discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined 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. 8/05/2019 X CHAIRPERSON 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 establishes policy and prescribes procedures for separating members for misconduct. 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 UOTHC discharge is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. d. Paragraph 14-33b (1) provides for the separation when there is frequent incidents of discreditable nature with civil or military authorities. e. Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 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.