IN THE CASE OF: BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190011237 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 20 January 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 October 1993 * National Personnel Records Center (NPRC) Letter, dated 23 May 2019 * NPRC Service Request, generated on 23 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 was caught driving while intoxicated at a check point while leaving the post. He was young and he was advised by a counselor on post. It was an isolated incident and he grew up in Cuba as a military brat. 3. The applicant enlisted in the Regular Army on 12 November 1992, at age 29. He completed training as an armor crewman. 4. The applicant accepted nonjudicial punishment (NJP) on 20 May 1993, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave from on or about 17 May until on or about 19 May 1993. 5. The applicant was counseled on 9 September 1993. a. The DA Form 4856 (General Counseling Form) shows that on 10 July 1993, he was stopped at the main gate of Fort Knox, Kentucky and requested by a military policemen to submit to an intoxylizer test. He refused and was taken to the emergency room at Ireland Army Hospital, where his commanding officer ordered him to take a blood alcohol test. He was convicted by the post magistrate's court on 8 September 1993 of driving under the influence (DUI) of alcohol. b. During the counseling, it was explained to him that the purpose of the counseling was to ensure he understood he had been convicted of a DUI. He was informed of the possible consequences of his conviction. He was told he was being considered for elimination from the military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, section 5a(1), for conviction by a magistrate court. He was informed of the consequences of receiving a less than fully honorable discharge. 6. The applicant was reduced to the rank/grade of private/E-1 on 1 October 1993, as a result of his DUI conviction. 7. The applicant's commander notified the applicant on 4 October 1993 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for conviction by a magistrate court. As the basis for his recommendation, his commander cited his conviction by the post magistrate's court for DUI on 8 September 1993, and a second incident in which he was involved, where he was confined by civil authorities from 23 September until 27 September 1993. 8. The applicant acknowledged receipt of the notification on 5 October 1993. He consulted with counsel and elected not to submit a statement in his own behalf. 9. The applicant's commander formally recommended his separation from service on 5 October 1993, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for conviction by a magistrate court. The separation authority approved the recommended discharge and directed that the applicant receive a general discharge. 10. The applicant was discharged on 15 October 1993, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct – conviction by a magistrate court. His DD Form 214 confirms he completed 10 months and 28 days of net active service this period and his service was characterized as under honorable conditions (general). 11. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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 and the reason for his separation. 2. The applicant contends that his DUI was an isolated event. However, his record shows in his nearly 11 months of active duty, he had three incidents of misconduct (the DUI, a second civilian misconduct, and a period of AWOL. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination and there was no post- service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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, U.S. Code, 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) AR20190011237 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011237 5 ABCMR Record of Proceedings (cont) AR20190011237 4