ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20190010596 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 June 2019, with self-authored statement 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, in effect: a. He was discharged in the early part on February 1994. He received a general discharge due in part to a first sergeant (1SG) who was giving him a hard time, having a baby on the way, and being conflicted about military life as a married man. He is not making excuses, just stating what was going on in his life at that time. b. At the time, and due to his lack of maturity, he gave the 1SG several reasons to feel he was not fit for the Army. In response to this, the 1SG started a process that would lead to his dismissal from the military. He could have fought this decision and stayed in; however, given the coming changes in his life, he felt civilian life would be a nice change of pace. c. During the five years of his enlistment, he served his country honorably through multiple conflicts overseas in various sand boxes. Moving forward, he wonders if the scarlet letter can be removed and he can receive an honorable discharge. 3. The applicant enlisted in the Regular Army on 30 June 1989. 4. The applicant's service records contains two Uniform Traffic Citation, Summons, Accusations / Warnings from the state of Georgia, which show he was charged on 23 October 1993 with; having a deadly weapon [1-9 mm pistol, 1-22 cal. pistol, 1-Glock 9 mm, 1-9 mm pistol] – [4 guns plus ammo] and with discharging a firearm in public. 5. The applicant's commander notified the applicant on 10 January 1994 that he had initiated actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of serious offense. 6. The applicant underwent a mental status evaluation on or about 12 January 1994. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant was being considered for elimination for misconduct and had the mental capacity to understand and participate in board proceedings. Additionally, the relevant Standard Form 88 (Report of Medical Examination) shows he was qualified for separation. 7. The applicant consulted with counsel on 18 January 1994 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, 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 did not have six or more years of total active and reserve military service. He elected to submit the following statement in his own behalf, on 19 January 1994: I am currently being separated from the Army with a General Discharge Under Honorable Conditions. I am requesting to have this matter upgraded to an Honorable Discharge. I do understand that in the past few months I have ran into a few problems, but I request that my Military Record be taken into consideration before a final judgement is made. I have been in the Army since June 1989, I was stationed in Germany for 2 years with the 4/1st ADA as a 31M. I PCSed to Fort Huachuca, AZ. and was assigned to the 11th Sig. Bde, 40th Sig. Bn., 209th Signal Company. While assigned there I've served with this unit in Somalia as well as numerous field problems throughout the United States. My awards and Decorations include: Good Conduct Medal, Army Achievement Medal 4th Award, Overseas Service Ribbon, Joint Service Achievement Medal, Noncommissioned Officers Development Ribbon and the Humanitarian Service Medal. I have also received numerous Letters of Appreciation and Certificates of Achievement. Sir, I am requesting favorable consideration to my request so that I may start a new life in the civilian world after the military. 8. The applicant's brigade commander initiated a letter of reprimand for his acts of misconduct on 24 January 1994. The applicant acknowledged receipt of his reprimand on 26 January 1994. The commander imposed the letter of reprimand on 28 January 1994, which stated: You are hereby reprimanded for misconduct. On 23 October 1993, while outside Paulie's Riverhouse in Augusta, Georgia, you fired eight rounds from a handgun into a wooded area across the Savannah River. You fired the pistol in the immediate vicinity of the nightclub and houseboats on the river. When arrested by Augusta City police you had three handguns in your possession. For these acts, you were found guilty by the Municipal Court of Augusta of possession of a deadly weapon and discharge of a weapon within the city limits in violation of city ordinance. Your conduct also violates Article 134 of the UCMJ. As a Soldier of the U.S. Army you are held to high standards of professional behavior. By wrongfully carrying firearms and wantonly discharging a weapon in a public area, you demonstrated a gross disregard for the lawful and safe handling of firearms. Your behavior displays inexcusably poor judgement, jeopardizes relations between this post and the civilian community, and brings discredit upon the U.S. Army. This is an administrative reprimand imposed under the provisions of Army Regulation 600-37 and not as punishment under UCMJ, Article 15. Pursuant to Army Regulation 600-37, I may file this reprimand locally in your Military Personnel Records Jacket (MPRJ) or forward the reprimand to a general officer with a recommendation that it be filed in your Official Military Personnel File (OMPF) at HQDA. Before the filing decision is made, this memorandum is referred to you for any comments you wish to submit. You have 72 hours from receipt of this memorandum to submit your reply in accordance with paragraph 3- 6, Army Regulation 600-37. 9. The applicant's chain of command formally recommended the applicant's separation, under the provisions of Army Regulation 635-200, paragraph 14-12c. The separation authority approved the recommended discharge and directed that he be issued a DD Form 257A (General Discharge Certificate). 10. The applicant was discharged on 7 February 1994. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. His service was characterized as under honorable conditions (general). 11. 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 Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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. 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) AR20190010596 6 1