ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20190009780 APPLICANT REQUESTS: His under honorable conditions (general) discharge be 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 16 May 2019 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 wants his discharge upgraded because he has been discharged for over 20 years. 3. The applicant enlisted in the Regular Army on 8 October 1992. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 19 May 1993, for making a false official statement with the intent to deceive, on or about 10 May 1993. b. On 29 July 1993, for being derelict in his duties by failing to properly secure his personal weapon, on or about 22 July 1993. His sentence included his reduction to the rank/grade of private/E-1 and a suspended forfeiture of pay, to be automatically remitted if not vacated before 29 September 1993. c. On 8 November 1994, for failing to go at the prescribed time to his appointed place of duty, on or about 3 November 1994. His punishment included suspended extra duty, restriction, and forfeiture of pay. 5. The applicant underwent a command-directed mental status evaluation on 14 February 1995. The relevant DA Form 3822-R (Report of Mental Status Evaluation) contains the following statement: "This Soldier was evaluated at the Commander’s request on 6 and 14 Feb 95. This Soldier is psychiatrically cleared for any administrative action deemed appropriate by command." 6. The applicant's immediate commander notified the applicant on 10 March 1995 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, because of an established pattern of misconduct, specifically receiving two company grade Article 15s and numerous counseling statements for various offenses. He further stated the applicant’s conduct was prejudicial to the good order and discipline in the unit and his discharge would be in the best interests of the Army. 7. The applicant consulted with counsel on 15 March 1995 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He elected not submit statements in his own behalf. He requested to appear before an administrative board if his discharge [characterization] was less than honorable. 8. The applicant's commander formally recommended that he be separated under the provisions of Army Regulation 635-200, Chapter 14, by reason of his established pattern of misconduct. As the specific reason for his recommendation, he cited the applicant's receipt of two company grade Article 15s and numerous counseling statements for various offenses. The commander noted the applicant was not entitled to appear before a board of officers. The applicant’s conduct was prejudicial to the good order and discipline in the unit and his discharge would be in the best interests of the Army. He did do not consider other disposition feasible or appropriate because further attempts at rehabilitation would not be in the best interests of the Army, as they would not produce a quality Soldier. He recommended rehabilitation requirements be waived. 9. The applicant's intermediate commander recommended approval of his separation on 20 March 1995. He also recommended a waiver of further rehabilitation requirements and noted the applicant was not entitled to have his case considered by an administrative board. Lastly, he recommended the applicant be issued a General Discharge Certificate. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 27 March 1995, under the provisions of Army Regulation 635-200, paragraph 14-12(b) (patterns of misconduct), and directed that he be issued a General Discharge Certificate. He noted rehabilitation requirements had been waived. 11. The applicant was discharged on 3 April 1995. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct." His service was characterized as under honorable conditions (general). 12. The Board should consider the applicant's request 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. 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. Paragraph 3-7b provides that 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 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. 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) AR20190009780 6 1