IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190011754 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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 2 August 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, toward the latter half of his career, he served with a sergeant who made it clear that he would make sure the applicant was put out of the Army. He never had any issues with authority besides this man, who obviously had a personal vendetta against him. Prior to this involvement, he was a motivated and goal driven Soldier intent on completing his term honorably. 3. The applicant enlisted in the Regular Army on 13 November 1984. 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: * on 7 August 1985, for being disrespectful in language toward a non- commissioned officer, on or about 26 July 1985 * on 7 August 1985, for failing to go at the time prescribed to his appointed place of duty, on or about 27 July 1985 * on 24 October 1985, for failing to go at the time prescribed to his appointed place of duty, on or about 20 October 1985, 21 October 1985, 18 October 1985, and 15 October 1985; and for failing to obey a lawful order, on or about 16 October 1985 5. The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 24 September 1985. He was enrolled in Track II on 28 October 1985. 6. In a memorandum from the ADAPCP Program Manager to the applicant’s commander, dated 21 November 1985, the ADAPCP Program Manager recommended that the applicant be released from the program based on his lack of motivation to use the ADAPCP as a resource. 7. A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 November 1985, determined the applicant was mentally responsible to participate in board proceedings and was cleared for administrative action deemed appropriate by his Command. 8. The applicant’s suspended punishment under the provisions of Article 15 of the UCMJ was vacated on 29 November 1985, for breaking restriction on or about 31 October 1985. 9. The applicant accepted NJP on 21 January 1986, under the provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 23 December 1985, and for two specifications of wearing an improper uniform, on or about 23 December 1985. 10. The applicant's immediate commander notified the applicant on 24 February 1986 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – patterns of misconduct. 11. The applicant acknowledged receipt of the proposed separation memorandum on the same date. He consulted with counsel and waived his right to consideration of his case by a board of officers and personal appearance before a board of officers, and declined to submit statements in his own behalf. 12. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The separation authority approved the recommended action on 3 April 1986 and directed the issuance of a UOTHC discharge. 13. The applicant was discharged on 15 April 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 UOTHC. 14. The Board should consider the applicant's overall record and the statement he provides 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 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, his enrollment and release from ADAPCP, the contents of the separation packet and the reason for his separation. 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. 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. 2. 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, 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 3-7b 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. 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) AR20190011754 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011754 5 ABCMR Record of Proceedings (cont) AR20190011754 4