IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20190004665 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 humbly requests his discharge be upgraded to Honorable. He has never had anything more serious than a speeding ticket in his entire life. Since leaving the service, he has been working in commercial construction management. During that time, he was instrumental in building a wounded warriors barracks, and an entire training battalion building at Fort Benning, Georgia. He does not want or need anything in the way of Veterans Services from the government. He would like to join the local American Legion or Veterans of Foreign Wars post one day. b. He served with honor and distinction for his entire career. While trying to ensure some younger troops made it home safely, he drove them in their vehicle and was stopped at a German police checkpoint. He was slightly over the driving under the influence limit and was turned over to the U.S. Army Military Policemen. That set in motion his ultimate separation from the service. During that same time, he personally saw senior officers in similar circumstances, remain in the service and be reassigned within the European command. 3. On 23 September 1983, the applicant entered active duty this period. He was promoted to the rank and pay grade of captain/O-3 effective 1 September 1987. 4. On 19 January 1989, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for conducting himself in a manner grossly unbecoming an officer by becoming excessively intoxicated, removing all of his clothing, entering the barracks room of his subordinate Soldiers while they were sleeping, and urinating on a chair placed between their bunks, splattering the face and hair of one of the enlisted Soldiers under his command with his urine, thereby awakening him [the enlisted Soldier] and the other occupants of the room. The applicant’s punishment consisted of forfeiture of pay for two months and restriction for 60 days. 5. A Notice of Restriction in connection with the applicant’s NJP shows his restriction was effective from 19 January to 20 March 1989. 6. On 14 February 1989, court-martial charges were preferred against the applicant for operating a vehicle while drunk and breaking restriction on or about 29 January 1989. 7. The applicant voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation (AR) 635-120 (Officer Resignations and Discharges), chapter 5 (Resignation for the Good of the Service). a. He acknowledged he was advised that prior to submitting his resignation he could consult with and be represented by qualified counsel who may be a member of the Judge Advocate General's (JAG) Corps or civilian counsel retained by him. He affirmed he had been fully advised and counseled in the matter by a member of the JAG Corps on 14 February 1989. b. He affirmed that he was afforded an opportunity to present matters in explanation, mitigation, or defense of his case and such matters were attached to his letter of resignation. He also affirmed that he understood that his resignation, if accepted, may be considered as being under other than honorable conditions. c. He acknowledged he understood that he would be barred from all rights based on the period of service from which he would be separated under any laws administered by the Department of Veterans Affairs. d. The applicant placed his signature on the document. e. The applicant submitted a signed statement that shows, in pertinent part: (1) He was writing this letter in the hopes that his request to resign in lieu of court-martial would be favorably considered, and that he would be recommended for discharge under honorable conditions. He realized his offenses were serious, and that he disobeyed the order restricting him. He could say nothing that would justify what he did, but he offered the following in extenuation and mitigation. (2) Both of his problems were alcohol-related. He was an alcoholic. Before he was apprehended for driving while intoxicated, he was into the pattern of denial which characterized alcoholics; he refused to admit he had a problem. He denied it when he was late for work; he denied it when he urinated in the barracks room; and he denied it until he was faced with probable court-martial. He was no longer denying his problem, however; he was actively seeking and receiving treatment. (3) He asked that his five and a half years of honorable service, and the fact that he was seeking treatment for the disease which had cost him his career, be considered when making a recommendation as to the type of discharge. 8. His chain of command, including the general court-martial convening authority, recommended approval of the applicant's resignation for the good of the service with the issuance of an under other than honorable conditions discharge. 9. On 7 March 1989, the Personnel Management Officer, U.S. Army Total Army Personnel Command, confirmed the Army Ad Hoc Review Board recommendation to accept the applicant's resignation and recommended issuance of an under other than honorable conditions discharge. 10. Office of the Assistant Secretary, Washington, DC, memorandum, dated 20 March 1989, subject: Resignation for the Good of the Service (pertaining to the applicant), shows the Deputy Assistant Secretary (Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant be discharged from the U.S. Army with an under other than honorable conditions discharge. 11. A medical examination for separation/retirement statement of option shows the applicant understood that he had not undergone a medical examination for separation from active duty. Based upon his failure to undergo a separation examination, it was therefore understood his medical records would reflect that he had waived his right to a medical examination in accordance with AR 40-501 (Standards of Medical Fitness), and that any claims or required follow-up treatment must be pursued through the Veterans Administration. The applicant placed his signature on the document. 12. On 4 May 1989, the applicant was discharged accordingly. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-120, chapter 5, based on conduct triable by court-martial with an under other than honorable conditions characterization of service. He had completed 5 years, 7 months, and 12 days of net active service during this period. It also shows the applicant was awarded or authorized the Army Commendation Medal, Army Service Ribbon, and Parachutist Badge. 13. On 10 April 1995, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 14. Army Regulation 635-120, in effect at the time, set forth the basic authority for the separation of officers. a. Chapter 5 provided that an officer may submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial. The resignation for the good of the service submitted by an officer would be forwarded by the commander exercising general court-martial jurisdiction to Headquarters, Department of the Army (HQDA), directly to the Commander, U.S. Total Army Personnel Command (Officer Personnel Management). A resignation for the good of the service, when approved by HQDA, was normally accepted as being under other than honorable conditions. b. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 15. In reaching its determination, the Board should consider the applicant's petition, his service record, and his 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, regulatory requirements, 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 character and reason for his separation. The Board noted the facts presented above. 2. The Board noted in pertinent part that the applicant voluntarily resigned. He acknowledged he was advised that prior to submitting his resignation by a member of the JAG Corps on 14 February 1989. He affirmed that he was afforded an opportunity to present matters in explanation, mitigation, or defense of his case and such matters were attached to his letter of resignation. He also affirmed that he understood that his resignation, if accepted, may be considered as being under other than honorable conditions. The applicant placed his signature on the document. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. After reviewing the application and all supporting documents, the Board found that relief is 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. 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 635-120, in effect at the time, set forth the basic authority for the separation of officers. a. Chapter 5 provided that an officer may submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial. The resignation for the good of the service submitted by an officer would be forwarded by the commander exercising general court-martial jurisdiction to Headquarters, Department of the Army (HQDA), directly to the Commander, U.S. Total Army Personnel Command (Officer Personnel Management). A resignation for the good of the service, when approved by HQDA, was normally accepted as being under other than honorable conditions. b. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004665 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004665 7 ABCMR Record of Proceedings (cont) AR20190004665 6