ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190012966 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 16 February 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 2 December 1987 * self-authored statement, dated 7 January 2011 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: a. At the time of the events leading to his discharge, his maternal grandmother was in the hospital dying of cancer. He requested leave from his platoon sergeant and first sergeant; however, his request was denied. His grandmother was like a mother to him. He was absent without leave (AWOL) for the purpose of going to see her. She ended up passing away. b. He is now a disabled veteran who put his life on the line for his country. He was a Ranger who was a ghost. He went many places. c. In an attached self-authored statement, he notes that the authority for his discharge was Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, section III, dated 1 July 1962. The directive is now obsolete and incorporated into a more modified volume of the Uniform Code of Military Justice (UCMJ). He honorably served his country for one year, three months and 14 days, which was well beyond 50 percent of his required active duty commitment. He feels he was strongly misadvised of the options available to him at the time of his discharge. He was not afforded the opportunity for consideration before a medical evaluation board. Considering the stress and pressure he felt at the time he opted for his discharge, he feels other options should have been discussed. To the best of his knowledge, they never were. d. At the time of the completion of this statement, 7 January 2011, he was incarcerated in the state of Maryland and was within sight of release. An upgrade to the characterization of his discharge would improve his possibility for release, and at the same time, enhance his employment opportunities outside. 3. The applicant enlisted in the Regular Army on 15 August 1986. Following the completion of his initial entry training, he was assigned to the 27th Engineer Battalion, Fort Bragg, NC. 4. The applicant’s service record contains multiple DA Forms 4856 (General Counseling Form) that show he was counseled for: * failure to follow orders and failure to complete tasks, on 28 July 1987 * failure to be at his appointed place of duty, on 29 July 1987 5. The applicant accepted non-judicial punishment (NJP) on 29 July 1987, under the provisions of Article 15 of the UCMJ, for failing to go at the prescribed time to his appointed place of duty, on or about 29 July 1987. 6. The applicant received four consecutive monthly counseling statements from 31 July 1987 to 21 October 1987, detailing unsatisfactory job performance, poor professional appearance, and lack of promotion potential. 7. The applicant was formally counseled on 21 October 1987 regarding his inability to follow orders, marginal conduct, lack of duty potential, and lack of proficiency in his occupational specialty. He was afforded a reasonable time for rehabilitative action and notified of the possibility of separation actions for continued unsatisfactory performance and conduct. 8. The applicant accepted NJP on 12 November 1987, under the provisions of Article 15 of the UCMJ, for being AWOL from his unit from on or about 6 November 1987 through on or about 10 November 1987. 9. The applicant was notified on 12 November 1987 of his immediate commander’s intent to initiate separation actions against him under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct – commission of a serious offense. The commander cited the applicant's receipt of an Article 15 for absenting himself from his unit without authority as the basis for the recommended separation. The applicant acknowledged receipt of the proposed separation action on 12 November 1987. 10. The applicant met with legal counsel on 13 November 1987 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, 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 elected not to submit a statement in his own behalf. 11. The applicant's commander formally recommended his separation on 17 November 1987, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct – commission of a serious offense. 12. The administrative discharge proceedings were reviewed by legal counsel on 19 November 1987 and were determined to be legally sufficient. 13. Consistent with the chain of command’s recommendation, the separation authority approved the applicant's discharge on 19 November 1987, under the provisions of Army Regulation 635-200, paragraph 14-12(c), by reason of misconduct – commission of a serious offense, and directed that he be issued a DD Form 257A (General Discharge Certificate). 14. The applicant was discharged on 2 December 1987. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, section III, by reason of "Misconduct – Commission of a Serious Offense." His service was characterized as under honorable conditions (general). 15. The Board should consider the applicant's overall service record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. The Board found insufficient evidence of in- service mitigation for the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the short term of honorable service completed prior to a lengthy list of misconduct, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service. However, the Board did find that the separation code and the narrative reason for separation was too harsh for the misconduct leading to the separation. For that reason, the Board recommended changing the separation code to JKN and the narrative reason to Misconduct, Minor Disciplinary Infractions. 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: 1. 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. 2. Prior to closing the case, the Board did find that the separation code and the narrative reason for the separation was too harsh for the misconduct leading to the separation. For that reason, the Board recommended changing the separation code (Block 26 of the DD214) to read, “JKN” and the narrative reason (Block 28 of the DD214) to read, “Misconduct, Minor Disciplinary Infractions”. 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. 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. 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. c. 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//