ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190007559 APPLICANT REQUESTS: * Upgrade of his general discharge under honorable conditions to honorable * In effect, correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the following: Overseas Service Ribbon, North Atlantic Treaty Organization (NATO) Medal, and foreign service in Bosnia 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 was in the Army from age 19 to 23 and he served overseas in a war zone. Based on his service, he contends he deserves to be eligible for Department of Veterans Affairs (VA) education benefits. He took classes while on active duty and continued his education after his discharge. He claims to have post- traumatic stress disorder (PTSD) and asserts he incurred tuberculosis during his Army service; his medical conditions have not been approved as disabilities. 3. The applicant's service records show: a. He enlisted into the Regular Army for a 4-year term on 26 October 1994; he was 19 years old. Following initial training, orders assigned him to Germany; he arrived on 31 March 1995. b. On 31 January 1996, he deployed with his unit to Bosnia. At some point prior to 29 May 1996, his chain of command promoted him to private first class (PFC)/E-3. c. On 29 May 1996, his chain of command recommended him for an Army Achievement Medal (1st Award); his unit won a Task Force Dining Facility competition, and his leadership was recognizing him because he had contributed significantly to the dining facility's achievement. Permanent Orders affirm his Army Achievement Medal (1st Award) was approved. d. The applicant's service record contains a NATO Medal Certificate showing the applicant participated in NATO operations in the Former Yugoslavia for the period 31 January through 28 October 1996. e. On 30 December 1996, the applicant's leadership recommended him for the Army Achievement Medal (2nd Award) because he had demonstrated outstanding food service skills and stamina during the preparation of the dining facility's Thanksgiving meal. Permanent Orders verify his Army Achievement Medal (2nd Award) was approved. f. On 24 March 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana. Punishment included rank reduction from PFC to private/E-1. g. On 15 October 1997, his commander notified the applicant of his intent to separate him under the provisions of paragraph 14-12c (Acts or Patterns of Misconduct – Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). His bases for this action were the following: NJP for wrongful use of marijuana; writing several dishonored checks; operating a vehicle without a valid driver's license; disobeying numerous lawful orders; and committing a larceny of private property. h. Also on 15 October 1997, after consulting with counsel, the applicant acknowledged counsel had advised him of the bases for the separation action, and that counsel had both told him his rights and the effect of waiving those rights. The applicant elected to make a statement in his own behalf, but his record does not include a copy. i. On 20 October 1997, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 13 November 1997, he was discharged accordingly. His DD Form 214 shows he completed 3 years and 18 days of his 4-year enlistment contract. In addition, his DD Form 214 reflects his service in Bosnia. He was awarded or authorized: Army Achievement Medal (2nd Award), National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Armed Forces Service Medal, and the NATO Medal. 4. According to the separation regulation in effect at the time (AR 635-200), commanders were to initiate separation action against Soldiers who had committed a serious offense for which the maximum punishment under the Uniform Code of Military Justice (UCMJ) included a punitive discharge (i.e. bad conduct or dishonorable). a. Commanders had the latitude to separate first-time offenders in grades E1 through E4 following the discovery of a drug offense. However, such action was required for Soldiers with 3 or more years of service. b. Per the Manual for Courts-Martial, in effect at the time, the maximum punishment for wrongful use of marijuana included a punitive discharge. 5. The applicant asserts his DD Form 214 is missing his Overseas Service Ribbon, the North Atlantic Treaty Organization (NATO) Medal, and his foreign service in Bosnia. The evidence of record shows the foregoing awards and foreign service are reflected on his DD Form 214, ending 13 November 1997. 6. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 to discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found that the applicant’s records reflect the awards and foreign service he requests. The Board found insufficient evidence of mitigating factors for his in-service misconduct; the applicant provided no additional medical evidence in support of his PTSD claim. 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 and the entrees for awards and foreign service were 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge. The regulation considered the abuse of illegal drugs as serious misconduct. Commanders could separate first-time offenders in grades E1 through E4 as appropriate; all Soldiers with 3 or more years of service were required to be processed for separation upon discovery of a drug offense. 3. The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included both the dishonorable and bad conduct discharge as punishments. 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. 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. 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) AR20190007559 6 1