IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20190005510 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge to fully honorable * a personal appearance before the Board 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) 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. Based on facts and misrepresentation, he is asking for a discharge upgrade to fully honorable. The reasoning for his discharge was unjust, due to the fact everyone in his unit was giving an option to finish the 20k walk on another day. His platoon sergeant testified he finished the walk the very next day. He was a model Soldier his entire military career with only one previous incident that happened years prior to his discharge. b. He was young and a newlywed. He paid restitution and served 45 days extra duty. He has certificates and awards from previous units. He always went over and beyond his duty. Also, he was discharged the last month of his enlistment. This has lingered on for too many years and he wants to be noticed as an honorable Soldier that served his country proudly. He wants to be honored by his country, children, and grandkids. It has taken him so long to file an appeal, due to work, not knowing the process, and at the time he was being discharged he was going through a divorce. 3. On 15 July 1993, he enlisted in the Regular Army for a period of 3 years. 4. On 11 December 1995, a Bar to Reenlistment Certificate was approved and imposed against the applicant based on: * receiving non-judicial punishment, under the provisions of Article 15 of the Uniformed Code of Military Justice on 2 separate occasions * misuse of Government funds and failing to report to his appointed place of duty 5. The applicant was furnished a copy of the Bar to Reenlistment Certificate, he was counseled and advised of the basis for the action, and elected not to submit a statement in his own behalf. He did not appeal the Bar to Reenlistment. 6. The applicant's record is void of a separation packet that provides the complete facts and circumstances surrounding his discharge. However, his DD Form 214 show on 3 June 1996, the applicant was discharged in the rank/grade of private/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense. The DD Form 214 he was issued also shows he completed 2 years, 10 months, and 19 days of his 3 year enlistment contract. He was given an under other than honorable conditions character of service. He was not awarded a personal decoration. 7. 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. This regulation 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. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 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. 9. 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, his record of service, the frequency and nature of his misconduct, a Bar to Reenlistment, the absence of a separation packet, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :XXX :XXX :XXX 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. This regulation states: a. 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. b. An applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 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. 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. ABCMR Record of Proceedings (cont) AR20190005510 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005510 6 ABCMR Record of Proceedings (cont) AR20190005510 4