BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20200000863 APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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, his discharge was inequitable because it resulted from a single isolated incident after 96 months of otherwise honorable service. He joined the Army in March 1983, and the Army separated him on 20 December 1991, due to misconduct – commission of a serious offense. a. The applicant asserts he did not get into any trouble until his last year of service, and what occurred involved issues between his young wife and him; they married too young, and they were unable to handle the problems that developed in the marriage. In an effort to get some help, he and his wife went to marriage counseling, and the applicant attended alcohol abuse classes. b. Since his discharge, the applicant has been an upstanding member of his community; he has continued to serve his country as a government contractor for a variety of Federal agencies, and he currently works as a Federal government employee. He earned a Bachelor's degree in Computer Information Systems, and he is currently pursuing a Master's degree in Cybersecurity. It is because he is now working for the Federal government that he wants to upgrade his character of service. c. The applicant states he has learned his lesson and taken full responsibility for his actions. He divorced his young wife shortly after he was discharged, and he took steps to turn his life around; he is now a productive citizen who is highly respected within his community. He remains grateful for having had the opportunity to serve in the Army, and he would be forever indebted to the Board if it granted his request. 3. The applicant's service records show: a. On 15 March 1984, the applicant enlisted into the Regular Army for 4 years. Following initial training, orders assigned the applicant to Fort Sill, OK, and he arrived on 24 August 1984. While at Fort Sill, his chain of command promoted him to specialist four (SP4)/E-4, effective 1 June 1987. On 6 November 1987, the applicant immediately reenlisted for 3 years. Orders subsequently reassigned him to Germany; he arrived in Germany on 8 August 1988. b. On 17 February 1990, military police (MP) officers observed the applicant driving his car erratically; upon stopping the vehicle, the MPs detected the strong odor of alcohol and administered a field sobriety test. As a result of the applicant's failure of the field sobriety test, the MPs apprehended the applicant and brought him to the Provost Marshal's office, where the applicant underwent a second field sobriety test; the applicant failed this test as well. The MPs brought the applicant to the local German police station to have an alcohol breath test administered; the applicant's test results showed a reading of 1.90 milligrams per milliliter of blood. On 21 February 1990, the supporting Office of the Staff Judge Advocate (OSJA) opined the MPs had sufficient evidence to charge the applicant with drunk driving. As a result of the foregoing incident, the following occurred: (1) On 1 March1990, the applicant was enrolled in Track II (Nonresidential Rehabilitation) of the Army's Alcohol and Drug Abuse Prevention and Control Program. (2) On 16 March 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk; the applicant's punishment included a suspended reduction in rank to private first class (PFC)/E-3. (3) On 22 June 1990, the U.S. Army Europe (USAREUR) Motor Vehicle Registry revoked the applicant's USAREUR driver's license indefinitely, based on the 17 February 1990 determination the applicant's blood alcohol content (BAC) was greater than 1.0. c. In the early morning hours of 5 April 1991, the MPs responded to a report the applicant had assaulted and threatened his wife after they had been engaged in a verbal altercation; the MPs stated alcohol was involved. In a sworn statement, the applicant's wife affirmed the applicant struck her in the face and threatened her. The applicant also gave a sworn statement in which he acknowledged striking his wife once, but added she had struck him twice; he denied communicating a threat. On 12 April 1991, the OSJA opined the MPs had sufficient evidence to title the applicant for the offenses of assault, consummated by a battery, and communicating a threat. d. On 2 May 1991, the applicant was reenrolled into Track II of the ADAPCP, following a medical referral. e. On 28 June 1991, the applicant accepted NJP for assaulting and communicating a threat to his spouse; punishment included a suspended reduction in rank to PFC. f. On 5 August 1991, the applicant immediately reenlisted for 3 years. On 6 August 1991, the applicant's commander referred him into Track II, ADAPCP, based on alcohol abuse. g. On 11 October 1991, the applicant accepted NJP for assaulting his wife; among the punishments administered, the imposing officer reduced the applicant to PFC. h. On 8 November 1991, the applicant's commander advised him of his intent to separate the applicant under paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander's action was based on the applicant's commission of the following UCMJ violations: Article 128 (Assault, Consummated by a Battery), Article 134 (General Article – Communicating a Threat), and Article 111 (Drunk Driving). i. Also on 8 November 1991, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for and the effects of the contemplated separation action; counsel also advised the applicant of the rights available to him as well as the consequences of waiving those rights. The applicant affirmed he understood he was entitled to have his case considered by an administrative separation board, and he voluntarily elected to waive this board, contingent on the separation authority approving a character of service that was no less favorable than under honorable conditions (i.e. general discharge). In the event the separation authority did not approve his conditional waiver, the applicant requested to personally appear with counsel before an administrative separation board. The applicant further elected not to submit statements in his own behalf. j. On 18 November 1991, the separation authority approved the applicant's conditional waiver and directed the applicant's general discharge under honorable conditions; on 20 December 1991, the applicant was discharged accordingly. His DD Form 214 shows he completed a total of 7 years, 9 months, and 6 days of net active duty service, of which he served only 4 months and 16 days of his last reenlistment contract. The remarks section of the DD Form 214 reflected his two earlier periods of service (enlistment and first reenlistment); the applicant was awarded or authorized: * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge with Driver-W Component Bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 4. The applicant essentially takes responsibility for his misconduct, but contends his discharge was inequitable because it was based on one isolated incident that occurred after he had served honorably for 96 months. The applicant points out his post-service accomplishments and notes he is currently a Federal government employee. a. During the applicant's era of service, commanders were to initiate separation action against Soldiers who had committed a serious military offense for which the UCMJ authorized a punitive discharge. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial showed punitive discharges were among the maximum punishments authorized for violating Articles 111 (Drunken Driving), 128 (Assault, Consummated with a Battery), and Article 134 (General Article – Communicating a Threat). b. The ABCMR, in reaching its determination, the Board can consider the applicant’s petition, his arguments 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 records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s request, his record and length of service, the frequency and serious nature of his misconduct, his enrollments in ADAPCP and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct. The Board considered his statement of remorse and post-service conduct, but did not find additional evidence of post-service achievements or letters of reference sufficient to support 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 concurs with the correction stated in the Administrative Note(s) below. 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 : X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, except for the correction stated in the Administrative Note(s) that follow, 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 his record shows his DD Form 214 is missing pertinent information. As a result add to item 18 (Remarks) "Continuous Honorable Service from 15 March 1984 to 5 November 1987 and 6 November 1987 to 4 August 1991." 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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor and 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 a lesser 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 still 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 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge. 3. The Manual for Courts-Martial, in effect at the time, showed punitive discharges among the maximum punishments for Articles 111 (Drunken Driving), 128 (Assault, Consummated with a Battery), and Article 134 (General Article – Communicating a Threat). 4. Army Regulation 635-5 (Separation Documents) prescribes policy and procedures regarding separation documents, it states in the preparation of the DD Form 214 for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter in item 18 (Remarks) "Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment). 5. 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) AR20200000863 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000863 7 ABCMR Record of Proceedings (cont) AR20200000863 5