IN THE CASE OF: BOARD DATE: 29 November 2020 DOCKET NUMBER: AR20190013909 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 September 2019 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 10 September 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 December 1989 * Virginia State University, Bachelor Degree of Social Work, 19 May 2019 * Commonwealth of Virginia, Department of Veterans Services, Letter of recommendation, dated 4 June 2019 * Department of Veterans Affairs (VA), Hunter Holmes McGuire Medical Center, Letter of Reference for employment, dated 31 July 2019 * Website search (https:// iris.custhelp.va.gov), dated 3 September 2019 * Miscellaneous document about Army Regulation 635-200 Chapter 14 Discharge 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, he would like an honorable discharge from the past event as his patterns of misconduct are now absence of any infractions. a. He knew he could go overseas at any time and his mind was not in a good place. His misconduct was a reflection of his discomfort with his living conditions and his family issues. He knew he had to change and he looked for help; after years of assistance with his alcohol addiction, he found a way out. b. He departed the military and worked hard to rebuild his life back. He volunteered with Veterans with disabilities and learned that there is help for those that want help and need help. He became director of the mentoring program with the County Court Systems. He obtained his Associates Degree in Human Services and certification in substance abuse. He received a Bachelor Degree in Social work with honors. He still volunteers to help disabled veterans. He is the president of the Virginia State University Association of Social Workers. He is currently working on his Master's degree in social work, his license from the state is pending based on his discharge status. c. He feels that communication and support are among the most important elements for a planned change. He would like his discharge upgraded so he will be able to move forward and upward. He wants to continue his education and be able to mentor, help and work with others. 3. The applicant enlisted in the Regular Army on 28 December 1981. He reenlisted in the Regular Army on 17 December 1986. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on an illegible date, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 3 June 1988 * on 8 March 1989, for failing to obey a lawful general regulation by having a blood alcohol level of .05 or higher, on or about 27 January 1989 * on 20 July 1989, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 5 July 1989 5. The applicant was formally counseled on three separate occasions between 21 July 1989 and 5 September 1989, for reasons including but not limited to: * failure to be at prescribed place of duty * missing from place of duty * missed 0630 physical training (PT) and 0900 work call 6. The applicant was given an administrative letter of reprimand (GOMOR) on 11 May 1987, for driving while under the influence of an intoxicating liquor, on or about 21 March 1987, with a Blood Alcohol Content (BAC) level of .20 percent. In a memorandum dated 22 May 1987, the imposing Commander directed filing of the GOMOR in the applicant's official military personnel file (OMPF). 7. In a letter dated 26 April 1988, the applicant was assessed by a psychiatric nurse from the substance abuse program at Central Counties Center. The nurse suggested the applicant be evaluated by the most competent Drug and Alcohol Coordinator at the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) at Fort Hood, Texas. 8. The applicant was enrolled in the Fort Hood Alcohol and Drug Rehabilitation Program on 8 June 1988. 9. The applicant was notified on 31 August 1988 for writing a bad check. As this was his second offense, he was ordered to attend a checkbook accounting class. The applicant attended class on 29 October 1988 and passed. 10. The applicant was notified on 29 March 1989 and 26 April 1989 that he had again written bad checks with insufficient funds. The applicant had unpaid loans with two different creditors. 11. The applicant was arrested by a police officer on 29 May 1989. He was found sleeping in a running vehicle that was parked in the center of the road, and his breath smelled of alcohol at the time. 12. The applicant was given a GOMOR on 1 August 1989, for suspected drunk driving, with a BAC of 0.18 percent, on or about 30 June 1989. In a memorandum dated 13 September 1989, the imposing Commander directed filing of the administrative letter of reprimand in the applicant's OMPF. 13. The applicant's immediate commander notified the applicant on 8 September 1989 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. His commander cited, as the specific reason, the applicant’s repeated driving while intoxicated, dishonored checks, failure to pay debts, and multiple instances of failure to report. 14. The applicant consulted with legal counsel on 11 September 1989 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He acknowledged his understanding and elected to submit a statement in his own behalf; however, his statement is not available for review. 15. 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 1 November 1989 and directed the issuance of a under honorable conditions (general) discharge. 16. The applicant was discharged on 8 December 1989. His DD Form 214 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 under honorable conditions (general). His DD Form 214 further shows he was awarded the Army Achievement Medal and two Army Good Conduct Medals. 17. A review of his service record confirms there are missing administrative entries that are not recorded on his DD Form 214. These entries will be added to his DD Form 214 as administrative corrections and will not be considered by the Board. The Board will consider his request for a discharge upgrade. 18. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. 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, documents provided by the applicant, the frequency and nature of his misconduct and the reason for his separation. The Board determined the applicant accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. The applicant provided evidence of post-service achievements and letters of reference in support of a clemency determination. Base on a preponderance of evidence, the Board agreed to grant clemency in the form of an honorable characterization. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 8 December 1989 showing his characterization of service as Honorable. 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 (Certificate of Release or Discharge from Active Duty), for the period ending 8 December 1989, 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 811228 UNTIL 861216 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 (Personnel Separations – Enlisted Personnel), 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. 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) AR20190013909 6 ARMY BOARD FOR CORRECTIONOF MILITARY RECORDS RECORD OF PROCEEDINGS 1