ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20190007562 APPLICANT REQUESTS: The applicant requests upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, in effect, he is ashamed of what he did while on active duty; when the applicant dies, he would like his son to receive a plaque. 3. The applicant's service records show: a. He enlisted into the Regular Army on 18 March 1980 for a 3-year term; he was 19 years old. On completion of initial training, he was assigned to Fort Sill, OK; he arrived on 29 August 1980. Effective 18 September 1980, his chain of command promoted him to private (PV2)/E-2. b. In or around December 1980, the applicant sought medical treatment for alcohol abuse; his doctor prescribed Antabuse (used for treatment of chronic alcoholism). c. On 6 June 1981, he departed his Fort Sill unit in an absent without leave status; he returned to military control on 1 September 1981. On 18 September 1981, a summary court-martial convicted him of being AWOL from 6 June 1981 until 1 September 1981 (87 days). The court sentenced him to 30 days' confinement, forfeiture of $330 per month for 1 month, and reduction to private (PV1)/E-1; he was immediately placed in confinement. On 22 September 1981, the summary court-martial convening authority approved the sentence and ordered its execution; on 29 September 1981, the applicant was transferred to the U.S. Army Retraining Brigade (USARB) at Fort Riley, KS. e. On his arrival at USARB, and as part of his in-processing, the applicant underwent a social work interview. (1) The interviewer noted the following; the applicant: * left school at 16 years of age because he was drinking and could not handle school * was married; he and his wife were at risk of divorcing because he was away from her too much * was experiencing financial problems due to his AWOL * almost committed suicide while AWOL because of his marital issues; asked for additional counseling to help him better understand what was going wrong in his marriage (2) Interviewer's overall impression was the applicant was fairly positive about remaining on active duty, but had a long history of alcohol abuse; this abuse contributed to his marital and financial woes. The applicant showed minimal coping skills and appeared easily swayed by others. The interviewer recommended additional work on the applicant's marital issues and a lot of focus on his alcohol abuse. f. On 4 November 1981, a member of the applicant's USARB cadre prepared a Behavioral Rating Scale, which evaluated the applicant's progress in the USARB program. The writer indicated the applicant's performance had been unsatisfactory and affirmed the applicant had violated the USARB pass policy; as a result, he would be receiving a team commander's letter of reprimand. The writer stated the applicant had a drinking problem and opined it was the reason for the applicant's failure in training. The applicant had told the writer he wanted to be discharged because he could not stop drinking. g. On 6 November 1981, the applicant's team commander issued him a letter of reprimand on a FR (Fort Riley) Form 1806 (Training Progress Notes); the team commander stated, in effect, he was reprimanding the applicant for violating the pass policy on 1 November 1981. h. On or about 12 November 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey the battalion trainee manual by leaving the unit area without an authorized pass on 7 November 1981. i. On 12 November 1981, the applicant's cadre referred him to Social Work for a discharge evaluation. (1) During the social work interview, the applicant indicated it was in his best interests to be discharged; this was because he believed he would not be able to resolve his marital issues while on active duty. The applicant also accepted responsibility for his actions, but the interviewer stated the applicant was impulsive, lacked sound judgment, and showed poor problem-solving skills; the interviewer opined these factors were at the root of the applicant's disciplinary problems. (2) The interviewer further noted there were signs the applicant should be referred for psychiatric treatment; while he appeared mentally competent and was not considered a risk at that time, he had entertained suicidal thoughts about 5-months earlier. Nonetheless, the interviewer cleared the applicant for whatever administrative action the commander deemed appropriate. j. On 17 November 1981, his USARB commander advised the applicant of his intent to separate him for unsuitable misconduct. On 24 November 1981, after consulting with counsel, the applicant acknowledged counsel had told him of the basis for the separation action, his rights under the separation process, and the effect of waiving those rights. The applicant elected to waive his rights and chose not to submit a statement in his own behalf. k. In the commander's recommendation to the separation authority, he stated the separation was based on frequent incidents of a discreditable nature, and cited the authority as paragraph 14-33 (Patterns of Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He noted the applicant's service record showed one summary court-martial conviction and one prior NJP. The commander attached a list of 26 events/infractions pertaining to the applicant's confinement at USARB. Included were the applicant's NJP; the letter of reprimand from the team commander; seven failed barracks inspections; and several documents pertaining to the applicant's in-processing, records of performance counseling, and weekly behavioral ratings. l. On 8 December 1981, the separation authority approved the commander's recommendation and directed the applicant's under other than honorable conditions discharge; on 14 December 1981, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 5 months, and 9 days of his 3-year enlistment contract, with two periods of lost time (AWOL and confinement). The separation authority was paragraph 14-33b (1) (Frequent Incidents of a Discreditable Nature with Civil or Military Authorities), AR 635-200. He was awarded or authorized the Humanitarian Service Medal and two marksmanship qualification badges. 4. The applicant expresses remorse for the misconduct that led to his adverse discharge. a. AR 635-200 required commanders to initiate separation action against Soldiers who displayed a pattern of misconduct; this included those Soldiers who were involved in frequent incidents of a discreditable nature with military authorities. The evidence of record shows the applicant was being treated for alcohol abuse, convicted of being AWOL for 87 days, accepted NJP on one occasion for violating USARB's pass policy, and failed to satisfactorily meet USARB standards. b. 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 request. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his transfer to the USARB, the reason for his separation and whether to apply clemency. The Board acknowledges the applicant’s remorse but found insufficient evidence of in-service mitigation for the misconduct and the applicant provided no evidence of post-service achievements of 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. 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. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-33 (Other Misconduct). Commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally given for Soldiers discharged under this provision. 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. 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) AR20190007562 5 1