IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20190013359 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 25 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, in effect, since his discharge, he has been an upstanding member of society, and employed as a journeyman carpenter for 24 years, by the city of Detroit. He has been a part of numerous city construction projects, and some government projects. He has displayed his military leadership and abilities to complete jobs on time, and below cost. He believes he is an asset to his company, the city of Detroit, and the state of Michigan. 3. The applicant enlisted in the Regular Army on 27 November 1987, served through one enlistment, and reenlisted on 4 May 1990. He attained the rank/grade of sergeant/E-5, served in Germany from 19 May 1988 through 20 June 1990, deployed to Saudi Arabia from 10 September 1990 through 7 April 1991, and served in Germany again from 26 January 1993 through 12 January 1995. 4. The applicant was counseled on several occasions for the following offenses: * on 20 April 1993 for failing to follow orders from his superior non-commissioned officer (NCO); and disobeying an order from his First Sergeant (1SG) on or about 16 April 1993 * on 29 July 1993 for confirmed spousal abuse on or about 9 July 1993 * on 9 September 1993 for failing to obey a lawful order from his Battery Commander, on or about 8 September 1993, by making advances towards a lower enlisted Soldier he was not supposed to have verbal or physical contact with * on 9 September 1993 and 27 September 1993 for possible administrative elimination 5. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 September 1993 for failing to obey a lawful order to stay away from or have any contact with T_, on or about 8 September 1993. His punishment included 14 days' extra duty and 14 days' restriction. 6. The applicant was counseled on 12 January 1994 for failing to adhere to the Battalion Safety Policy on or about 12 January 1994, and failure to follow the 1SG’s orders, unethical behavior, making racial statements, fraternization with lower ranks, and behavior unbecoming of an NCO on or about 10 January 1994. 7. The applicant received a Bar to Reenlistment Certificate on 7 March 1994, based on the NJP he received on 27 September 1993, and for him being academically removed from the Basic NCO Course (BNCOC). He elected not to appeal his bar to reenlistment on 8 March 1994. 8. The applicant underwent a command-directed mental status evaluation on 8 March 1994. The relevant DA Form 3822-R (Report of Mental Status Evaluation), shows; he had the mental capacity to understand and participate in the proceedings and was mentally responsible. The remarks section of this form noted the applicant had made direct homicidal threats against members of his chain of command. 9. The applicant accepted NJP under the provisions of Article 15 of the UCMJ, on 26 May 1994, for: * wrongfully communicating a threat to Dr. M_, on or about 8 March 1994, by threating to harm or kill his Commander and 1SG * wrongfully communicating a threat to his father, on or about 3 March 1994, by threating to kill his Commander and 1SG * his punishment included a reduction to the grade of specialist (SPC)/E4 and 45 days extra duty. 10. An administrative separation board was appointed on 5 May 1994, tasked with considering his elimination from military service; the applicant appeared before the board with his counsel on 16 November 1994. After careful consideration of his case; the board found on 1 December 1994, that his behavior constituted a pattern of misconduct and recommended he be separated with a general discharge. 11. The Kitzingen Law Center, Staff Judge Advocate, found the Separation Board’s findings and recommendations legally sufficient on 15 December 1994. 12. The separation authority approved the findings and recommendation for separation on 16 December 1994, under the provisions of Army Regulation 635-200, Chapter 14- 12b, and directed the applicant receive a general characterization of service. 13. The applicant was discharged on 13 January 1995. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct." His service was characterized as under honorable conditions (general). 14. The Board should consider the applicant's overall service record 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, his bar to reenlistment, 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. The applicant provided insufficient evidence of post-service achievements and did not provide 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 administrative corrections addressed in Administrative Note(s) below. 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, except for the items addressed in Administrative Note(s) below, 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, for the period ending 13 January 1995, 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): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 871127 UNTIL 900503 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// ABCMR Record of Proceedings (cont) AR20190013359 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013359 5 ABCMR Record of Proceedings (cont) AR20190013359 4