IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190013815 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant's email correspondence with the Army Review Boards Agency * Certificate, Texas A&M (Agricultural and Mechanical) University Extension Service, Fire Protection School * Nine Federal Emergency Management Agency (FEMA) Certificates of Achievement for Completion of Independent Study Courses * Six National Fallen Firefighters Foundation Certificates showing completion of online training classes * Texas Emergency Management Photo Identification Badge FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, he bases his request for upgrade on his ongoing volunteer service to his community. He has become a respected business owner, and serves as a volunteer firefighter and first responder; he attributes the success he has achieved to his military service. He notes his active duty military service was less than exemplary, and he maintains his young age and relative inexperience in life were key factors; nonetheless, he asserts he has since learned from his mistakes and, in all that he does, has sought to become an asset to both his community and his country. He provides numerous certificates that attest to his efforts to be a fully trained first responder. 3. The applicant's service records show: a. On 29 October 1985, after obtaining his parents' consent, the applicant enlisted into the Regular Army for 3 years; he was 17 years old. b. On 28 February 1986, while still participating in initial training, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for wrongfully appropriating a fellow-Soldier's wallet, containing $70. c. Following completion of initial training, orders transferred him to Germany; he arrived in Germany on 14 March 1986. Effective 29 April 1986, the applicant's chain of command promoted him to private (PV2)/E-2. d. Permanent Orders, dated 8 September 1986, awarded the applicant the Army Achievement Medal (1st Award) for meritorious service during the period 23 July to 11 August 1986. e. On 16 September 1986, the applicant accepted NJP for stealing a bicycle, valued at about $100, which belonged to another Soldier. Punishment included reduction from PV2 to private/E-1 and 7 days confinement at the local correctional custody facility. f. On 9 October 1986, the applicant's commander initiated bar to reenlistment action against the applicant; the commander's reasons were four counseling statements, dated between 10 and 18 September 1986, and the applicant's NJP for stealing a bicycle. The battalion commander subsequently approved the bar to reenlistment. g. On 15 October 1986, the applicant accepted NJP for abandoning his guard post. h. In or around December 1986, the applicant accepted NJP for stealing the following items: one pair of scissors, three flat-tipped screwdrivers, one phillips screwdriver, two sets of pliers, and one wire stripper tool (all of some value under $100); and a fellow-Soldier's bicycle and stereo cassette recorder (total value of more than $100). i. On 29 January 1987, the applicant's commander advised him in writing of his intent to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct). The commander's reason for this action (as provided to the applicant via a DA Form 2496 (Disposition Form), dated 2 March 1987) was the applicant's pattern of misconduct, as demonstrated by the applicant's theft of private property, his damaging government property, and his unauthorized departure from his designated guard post. j. On 29 January 1987, after consulting with counsel, the applicant acknowledged counsel had explained the basis for and the effects of the separation action; counsel also advised the applicant of his rights. The applicant waived his right to appear before and have his case considered by a board of officers; he also elected not to submit statements in his own behalf. k. On 17 March 1987, the separation authority approved the commander's recommendation and directed the applicant's under other than honorable conditions discharge; on 31 March 1987, the applicant was discharged accordingly. The applicant's DD Form 214 shows he completed 1 year, 5 months, and 3 days of his 3-year enlistment contract; he was awarded or authorized the Army Achievement Medal (1st Award), Army Service Ribbon, and two marksmanship qualification badges. l. On 9 August 1997, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. On 2 April 1998, after noting the applicant had not submitted any matters for consideration, the ADRB denied the applicant's request after determining his separation was proper and equitable. 4. The applicant acknowledges his misconduct, and maintains his post-service efforts to give back to his community through volunteer work as a first responder, along with his role in the community as a respected business owner, warrant the Board's favorable consideration of his upgrade request. In support of his request, he provides numerous certificates reflecting the completion of online first-responder training classes. a. During the applicant's era of service, commanders were to initiate separation action against Soldiers when they showed a pattern of misconduct; separation authorities typically issued an under other than honorable conditions character of service. b. In reaching its determination, the Board can consider the applicant’s petition, his supporting evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency 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, the commander notification and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the applicant’s statement regarding post-service conduct and certificates of training, but found no additional documents 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 and that there was insufficient bases for clemency. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. 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) AR20190013815 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1