ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190007862 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable and have item 28 on his DD Form 214 change. 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 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 he was discharged because of a second DUI. His commander gave him an article 15 and took half a month’s pay. He was given the option to stay or accept the discharge. He was advised by the JAG officer, he could request an upgrade after six months from effective date. He opted to leave the service under the impression a general discharge was acceptable and would not bar him from any benefits. The reason for his second DUI was due to the problems he was having with his wife and thought it would aid in the continuation of his marriage if he accepted the discharge. He felt he needed to do it to try and keep his family together. He doesn’t believe he was treated fairly with this type of discharge because he never caused any problems while in the service and should have been given an honorable discharge. He was stopped because he was speeding and was given a field sobriety test subsequently taken in for processing. He was arraigned and paid his fine. 3. On 23 May 1978, the applicant re-enlisted in the Regular Army for four years at the age of 23. 4. On 31 October 1985, the applicant received a letter of reprimand for his apprehension on suspicion of driving while intoxicated from the Fort Hood, Deputy, Commander. The applicant read and understood the allegations made and elected not to make a statement. 5. On 5 June 1986, he was formerly counseled by his commander for: * Driving while under the influence (DWI) in July 1985 * Driving while under the influence (DWI) 16 May 1986 6. A Bar to Enlistment/Reenlistment Certificate signed by the applicant on 5 June 1986, shows his commander initiated a bar to reenlistment. The applicant acknowledged the bar and elected not to submit a statement on his behalf. The command recommended he be barred from reenlistment for unsatisfactory conduct, for specifically: * DWI in Killeen, TX on 16 May 1986 * DWI on Fort Hood, TX on 19 July 1985 7. On 27 June 1986, the bar to reenlistment was reviewed by the commander; he determined that it should remain in effect. The same day he underwent a medical and mental examination and was deemed qualified for separation. The commander then, notified him that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) paragraph 14-12c, misconduct; for receiving two DWIs. 8. On 15 July 1986, the applicant acknowledged he understood his rights available and did not elect to submit statements in his own behalf. 9. On 16 July 1986, the applicant’s commander recommended he be discharged under the provisions of AR 635-200, Chapter 14-12c for misconduct; he received two DWIs and stated personnel in leadership positions must set the example and the applicant failed to do so twice within one year. 10. On 17 July 1986, the intermediate commander recommended approval and recommended that rehabilitation requirements be waived if they have not been met. 11. On 21 July 1986, the appropriate approval authority approved the recommendation for discharge of the applicant and directed he be issued a general discharge certificate and not be transferred to the individual ready reserve (IRR). 12. On 29 July 1986, the applicant was discharged accordingly; he completed 8 years, 2 months, and 7 days of net active service. 13. AR 635-200, Chapter 14 separates members who demonstrate or display patterns of misconduct, as evidenced by his multiple instances of misconduct and counseling. Paragraph 1-18 states, Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not product a quality Soldier. 14. The applicant states he was given a discharge because of his two DWIs. The reason for his second DUI was due to the problems he was having with his wife and thought it would aid in the continuation of his marriage if he accepted the discharge. He felt he needed to do it to try and keep his family together. He doesn’t believe he was treated fairly with this type of discharge because he never caused any problems while in the service and should have been given an honorable discharge. He was advised by the JAG that he could request an upgrade to his discharge after 6 months. a. His records show he completed high school; had two periods of honorable service and awarded the Army Good Conduct Medal (3rd Award); earned the Parachutist Badge; the highest rank he held was Staff Sergeant. b. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 15. 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 requests. The Board considered the applicant’s statement, the frequency and nature of his misconduct, his bar from reenlistment, the reason for his discharge and whether to apply clemency. The Board found there is no Army policy for automatic upgrade of discharges, as stated by the applicant. The Board found insufficient in- service mitigation for the 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 discharge 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. X CHAIRPERSON 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. 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 UOTHC discharge 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. d. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse e. Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 3. Army Regulation 600-85 sets for the basic authority for referral and screening. The commander will refer all individuals who are suspected or identified as drug and/or alcohol abusers, including those identified through urinalysis and blood alcohol tests. 4. 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.