ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 8 November 2019 DOCKET NUMBER: AR20190011213 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 25 July 2019 • DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 5 March 1997 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 is requesting an upgrade so that he can obtain a passport. 3. The applicant enlisted in the Regular Army on 28 March 1995. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: • on 17 March 1996, for wrongfully using cocaine (a schedule II controlled substance), on or about 6 October 1995 • on 13 June 1996, for failing to wear proper safety gear while riding a bicycle, on or about 17 April 1996 • on 2 October 1996, for taking indecent liberties with a child, on or about 14 July 1996 5. The applicant was formally counseled on 21 October 1996, for failing to be at his appointed place of duty (Alcohol and Drug Abuse Preventive and Control Program (ADAPCP)) on 15 October and 18 October 1996. 6. The applicant's commander notified the applicant on 31 January 1997 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12b, for patterns of misconduct. His commander cited, as the specific reason for the proposed separation, the applicant's failure to report to his appointed place of duty on 15 October and 18 October 1996; his taking indecent liberties with a child on 14 July 1996; his failure to obey a general regulation; and his cocaine use on or about 6 October 1995. 7. The applicant consulted with counsel and was advised of the basis for the contemplated action 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 his understanding that he could expect to encounter substantial prejudice in civilian life if he was issued an under honorable conditions (general) discharge. He acknowledged his understanding and he submitted a statement in his own behalf, in which he noted: • he have made mistakes in his military career that he regrets • he has deep remorse for the people that he has hurt and wish he could change things • he is requesting an upgrade to his discharge in hopes of improving his life, getting married, and supporting his family in the future 8. The applicant's immediate commander formally recommended his separation fromservice under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct. The separation authority approved the recommended action on 11 February 1997 and directed the issuance of a DD Form 257A (General Discharge Certificate). 9. The applicant was discharged on 5 March 1997. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct. His service was characterized as under honorable conditions (general). 10. The Board should consider the applicant's statement in accordance with thepublished 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, other than the administrative notes found by the analyst of record. The Board applied Office of the Secretary of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board considered the applicant's record, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient mitigation to overcome the severity of the misconduct; 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 agreed that the applicant’s discharge characterization was not in error or unjust. 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 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011213 ABCMR Record of Proceedings (cont) AR20190011213 1 2 1