ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20190006517 APPLICANT REQUESTS: His under honorable conditions (general) discharge upgraded to an honorable discharge. 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), dated 17 April 2019 * DD Form 214 (Certificate of Release or Discharge from Active duty), for the period ending 6 February 1990 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 is requesting an honorable discharge because many years have passed since his discharge in 1990. He has been in good standing in his community and he has obeyed the laws. He would like an updated Honorable Discharge Certificate and an updated DD Form 214 that show his character of service as honorable. 3. The applicant served honorably in the Regular Army from 20 September 1983 through 19 July 1986. He reenlisted in the Regular Army on 1 April 1987. 4. The applicant was counseled on 17 July 1989, after he was apprehended by civilian authorities for driving under the influence (DUI). The DA Form 4856 (General Counseling Form) shows was counseled regarding the severity of a DUI and that as a noncommissioned officer (NCO), he was responsible for setting an example for other Soldiers. He was told he would be command-referred to the installation Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). 5. The applicant was counseled on 14 August 1989 for a DUI incident that occurred on 13 August 1989. He was told that his post driving privileges were immediately suspended and that the suspension would be reviewed upon receipt of a police report or other information concerning his arrest. 6. The applicant received a letter of reprimand (LOR) on 28 September 1989, which noted that on 13 August 1989, the Marina Department of Public Safety cited him for operating a motor vehicle when his blood alcohol content was .22/.19/.18 percent. He was told that anyone who drives a motor vehicle and has a blood alcohol content of .10 percent or more violates the law. He was informed that he was being reprimanded and that the Army and the Command had repeatedly emphasized that drunk drivers are a threat to the safety of themselves and others. It was expressed to the applicant that he had ignored the warnings and drove while he was physically and mentally impaired, and that his irresponsible conduct brought discredit upon himself and raised doubts about his fitness for future service. The applicant acknowledged receipt of the LOR on 3 October 1989. 7. The applicant's commander notified the applicant that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), for commission of a serious offense. The applicant acknowledged receipt of the notification on 16 November 1989. 8. The applicant consulted with counsel on 16 November 1989 and was advised of the basis for the contemplated separation actions for misconduct, the rights available to him, and the effect of any action taken by him in waiving his rights. After consulting with counsel, he elected consideration of his case by a board of officers. 9. A board of officers convened on 17 January 1990 to determine whether the applicant should be separated from the Army due to his commission of a serious offense. The board found that the applicant was undesirable for further retention in the military because of his DUI and deemed his rehabilitation not possible. The board recommended the applicant's separation from the service under the provisions of Army Regulation 635-200, paragraph 14-12(c), based on two separate DUIs that occurred on 17 July and 13 August 1989. The board recommended he be issued a DD Form 257A (General Discharge Certificate). 10. The separation authority approved the recommended discharge on 26 January 1990, under the provisions of Army Regulation 635-200, Chapter 14, and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 6 February 1990, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense. His DD Form 214 confirms his service was characterized as under honorable conditions. 12. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 13. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. 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 record of service, the frequency and nature of his misconduct (2 DUI), the Board of Officers determination, the reason for his separation and whether to apply clemency. The Board found no evidence of mitigating factors in the records. The Board considered the applicant’s statement regarding his post-service conduct, but found he provided no additional evidence of post-service achievements or letters of reference in support of clemency. Based on a preponderance of evidence, the Board determined that the character of service he received at the time of his 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 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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 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. 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. ABCMR Record of Proceedings (cont) AR20190006517 4 1