IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190011087 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 or Dismissal from the Armed Forces of the United States), dated 1 July 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 was charged with a crime off post. His chain of command and a representative from the Office of the Judge Advocate General (JAG) thought it would be best if he dealt with it. He was proven innocent of all charges on 27 August 1999 (two weeks after his discharge). His representative from JAG also told him to apply for an upgrade after six months and the discharge would be upgraded. He is just now able to get over the event. 3. The applicant enlisted in the Regular Army on 22 November 1994. He completed training as a ground surveillance systems operator. He reenlisted in the Regular Army on 14 August 1997. 4. The applicant was counseled on 23 September 1998. His DA Form 4856 (General Counseling Form) shows he was counseled for missing accountability formations twice in less than a two week period. 5. The applicant underwent a mental status evaluation on 6 April 1999. His DA Form 3822-R (Report of Mental Status Evaluation) shows he was command referred pursuant to separation from the service under the provisions of Army Regulation 635-200, Chapter 14. The staff psychiatrist determine the applicant's mental status was within normal limits and that there was no evidence of psychosis. He denied suicidal and/or homicidal ideation, intent or plan at that time. He was psychiatrically cleared for any administrative judicial action deemed appropriate by his command. 6. The applicant was counseled on 14 June 1999 for violating Article 107 of the Uniform Code of Military Justice (UCMJ) by making a false official statement on or about 19 May 1999. On his DA Form 4856, his senior noncommissioned officer (NCO) noted that he had not shown up for work after 13 May 1999 but he was not in a leave status until 25 May 1999. He was told that by lying to his supervisor, he had breached the integrity the Army relies on to accomplish its mission and that he had placed questions of his trust and ability to positively influence Soldiers. 7. The applicant was counseled on 16 June 1999 for violating Article 134 of the UCMJ. His DA Form 4856 shows that during the month of April and the beginning of May 1999, several creditors, to include Chrysler Corporation, American Lending and "PTI" contacted the unit concerning his past due bills. The applicant had been previously verbally counseled concerning indebtedness and how it could affect his career. He had made arrangements to make up two months of late payments for his vehicle. Calls had been made to the home of his senior NCO from Chrysler Financial, requesting help in getting the applicant to voluntarily surrender his vehicle and the calls were made during duty, off duty, and while he (the senior NCO) was on leave. The applicant's senior NCO stated that after speaking with the applicant's chain of command it was clear that it was not the first "rash" of phone calls in reference to his indebtedness. The applicant was told that by virtue of his actions, he misled Soldiers into being undisciplined and irresponsible, which the Army would not tolerate. 8. A complaint and notice to appear in the 4th Judicial District, Fairbanks, Alaska was filed against the applicant on 23 June 1999. According to the complaint, the applicant unlawfully and recklessly caused physical injury to another individual on 22 June 1999, by picking him up, shaking him, and shoving him into a piece of furniture causing injury and pain to that individual's back. His trial was set for 24 August 1999. 9. The applicant's commander notified the applicant on 9 July 1999 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. The applicant's commander cited the applicant's pattern of misconduct consisting of assault upon an NCO and failing to repair as the basis for his recommendation. The applicant acknowledged receipt of the notification on 9 July 1999. He consulted with counsel and his acknowledgement shows he made an election not to submit a statement in his own behalf 10. The applicant's commander formally recommended his separation from service on 9 July 1999, under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. The separation authority approved the recommendation for discharge on 22 July 1999 and directed the applicant's service be characterized as under honorable conditions and the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 13 August 1999, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – a pattern of misconduct. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed four years, eight months, and seven days of net active service this period and that his service was characterized as under honorable conditions (general). 12. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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 separation was not in error or unjust. The Board concurred with the matters addressed in Administrative Note(s) below. 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: Other than the matters addressed in Administrative Note(s) below, the Board determined 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): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 August 1999, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * IMMEDIATE REENLISTMENT THIS PERIOD: 941122 TO 970813 * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 941122 UNTIL 970813 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 states 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 (including drug abuse), 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. c. Paragraph 14-3 states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011087 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011087 5 ABCMR Record of Proceedings (cont) AR20190011087 4