ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20190009449 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 18 April 2018 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 would like to start receiving benefits from the Department of Veterans Affairs (VA). He received a general discharge for a bad decision he made at the age of 17. His service record will show that until he made that mistake, he was a very good Soldier with a good outlook on life. He has continued to be a productive member of society and he currently works for the VA Health Care System as a Program Support Assistant servicing the needs of our veterans. He would like to be a part of that elite group of honorably discharged Army veterans. 3. The applicant enlisted in the Regular Army on 23 November 1988, at age 18. He completed training as an infantryman. 4. General Court-Martial Order Number 52, issued by Headquarters, 101 Airborne Division (Air Assault) and Fort Campbell, Kentucky on 9 August 1990, shows the applicant was convicted on or about 9 July 1990, of the following offenses: * resisting apprehension by a military policeman, on or about 4 March 1990 * breach of peace by engaging in a fist fight, on or about 4 March 1990 * wrongfully and unlawfully consuming alcohol, on or about 4 March 1990 * being drunk and disorderly, on or about 4 March 1990 5. The applicant's sentence included his reduction to the rank/grade of private/E-1, forfeiture of $400.00 pay for five months, and confinement for five months. 6. 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 29 November 1990. 7. The applicant 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. He waived his right to consult with counsel on 29 November 1990 and he waived his right to consideration of his case by a board of officers. He made an election not to submit a statement in his own behalf. 8. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12(c). 9. The separation authority approved the recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-12(c), and directed the issuance of a DD Form 257A (General Discharge Certificate). 10. The applicant was discharged on 6 December 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. 11. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find any evidence of error, injustice, or inequity. The applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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. 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.