BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20200000784 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 4 September 2019 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 4 September 2019 * Memorandum, dated 23 June 1989, subject: CID Report of Investigation – Final Report – [CID case number], Wiesbaden Resident Agency, Second Region, U.S. Army Criminal Investigation Command (CID) 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 he was arrested and charged with crimes he did not commit; the charges were dropped. It has been 30 years and he has received new information regarding these charges. He would like his under honorable conditions (general) discharge upgraded to an honorable discharge. 3. The applicant enlisted in the Regular Army on 27 July 1987. 4. The applicant received two notification letters from Headquarters, Army and Air Force Exchange Service (AAFES), Europe, on 24 October 1987 and 10 November 1987, regarding dishonored check use. He received a memorandum from his commander, dated 3 December 1987, notifying him his check writing privileges were suspended for one year. 5. The applicant's command received five letters between 8 February 1988 and 12 August 1988, regarding the applicant’s delinquent account with a jewelry company located in the U.S. 6. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 12 August 1988, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 21 July 1988 * on 2 December 1988, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 17 October 1988 7. The applicant was formally counseled on six separate occasions between 28 January 1988 and 25 October 1988, for reasons including but not limited to: * failure to report for clean-up detail * failure to make payments on multiple civilian accounts * room inspection failure * failure to report to appointed place of duty 8. The applicant underwent a mental status evaluation on 21 February 1989. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings and he was cleared for any administrative action deemed appropriate by his Command. 9. The applicant's immediate commander notified the applicant on 8 March 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, his conduct prejudicial to good order and discipline. 10. The applicant acknowledged receipt on 8 March 1989. He elected, on 11 March 1988, not to consult with counsel after reviewing his case. He was advised and afforded the opportunity to consult with military counsel, or civilian counsel at his own expense and declined the opportunity. 11. The applicant acknowledged his understanding and he submitted a statement in his own behalf, in which he noted that he had problems in the past for many reasons and one of the main reasons was he was not allowing himself to grow, mature, and accept responsibility. Since he had faced so much trouble, he realized he must take different steps to remain a soldier. He was ready to respect the military for what it is. He asked for another chance to prove to his superiors and himself what he could accomplish. He promised to be a better Soldier, to respect his responsibilities, and to display leadership abilities to his fellow Soldiers. He felt he needed the military and if given another chance, he could be a great asset to the Army. 12. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. The separation authority approved the recommended action on 27 March 1989 and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 10 April 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. 14. The applicant provides a CID Final Report of Investigation that shows he was investigated for a major crime that occurred on 11 March 1989, immediately prior to his date of discharge. The report shows the investigation did not disclose probable cause to substantiate the offense for which he was investigated. 15. 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 not warranted. The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. 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: 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 3-7a 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) AR20200000784 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000784 5 ABCMR Record of Proceedings (cont) AR20200000784 4