IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210007914 APPLICANT REQUESTS: The applicant requests the upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he recently learned he could request an upgraded character of service; he has been without a stable residence, and, now that he has a place, he respectfully asks the Board to grant him an honorable discharge. 3. The applicant's service records show: a. On 15 September 1989, the applicant enlisted in the U.S. Army Reserve for 8 years. On 31 January 1990, he entered active duty to complete initial entry training; on 29 June 1990, orders honorably discharged the applicant and transferred him to his Troop Program Unit. The applicant's DD Form 214 shows he completed 4 months and 29 days of net active duty service and was awarded or authorized the Army Service Ribbon and two marksmanship qualification badges. b. On 17 October 1990, the applicant requested to enlist in the Regular Army; on 22 October 1990, an approving official authorized the applicant's Regular Army enlistment. On 17 January 1991, the applicant enlisted in the Regular Army for 5 years, and orders transferred the applicant to Germany; he arrived at his unit on 24 February 1991. c. On 24 April 1991, the applicant deployed to Southwest Asia, and, on 24 June 1991, the applicant redeployed to Germany. At some point prior to January 1992, the applicant's spouse joined him in Germany. d. On 27 January 1992, the military police (MP) received notification of a domestic dispute at the applicant's quarters; on arrival, the MPs learned the applicant and his spouse had gotten into a verbal altercation, which escalated and became violent. The applicant struck his wife in the face with his open hand several times. The MPs gave the applicant an order to remain silent and stay in a specific area, but the applicant refused. At that point, the MPs apprehended the applicant and transported him to the MP station. At the MP station, the applicant invoked his rights and requested an attorney; his spouse, however, gave a sworn statement, in which she stated: (1) She and the applicant had been in bed, when the applicant turned over and called another woman's name. The applicant's wife became upset and went to the living room to cool off; about 2 minutes later, the applicant came in asking what he had done wrong. At first, she told him to leave her alone, but as he continued to press her, she told him what he had said. After the exchange of a few words, the applicant went to back, and the applicant's wife ran a bath in an effort to relax. (2) The applicant and his wife then got into disagreement about the television remote, and the applicant hit his wife in the face with his open hand, causing her to knock over the stereo. They continued to argue, and, at one point, the applicant took a knife and put a hole in his wife's coat. A man came upstairs and asked if the applicant's wife was all right; when she responded, "No," the applicant told her to "shut the f__ up." As they continued to argue, the applicant's wife threw a lamp at the applicant, kicked a table, and spit at the applicant. The applicant picked up a shoe and hit his wife in the chest; when she spit at him a second time, the applicant began to beat her. Then the applicant left for about 5 minutes, after which the MPs arrived. e. On or about 31 March 1992, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). The associated DA Form 2627 (Record of Proceeding under Article 15, UCMJ) is not available for review; however, on 24 April 1992, the imposing official vacated suspended punishments he had previously imposed on 31 March 1992. The vacated punishments were 45 days' restriction and the forfeiture of $392 per month for 2 months, and the imposing official stated the reason was the applicant's failure to report for extra duty. f. On 1 May 1992, the applicant underwent a mental status evaluation; the evaluating medical authority reported the applicant met medical retention standards, as outlined in Army Regulation (AR) 40-501 (Standards of Medical Fitness), but added the following comments: "Soldier appears somnolent, had to be awaken for exam. States has fatigue because is working longer hours. He does have capacity to understand proceedings and is mentally competent. No further psychiatric exam is needed." g. The applicant's service record includes his commander's request for the preparation of the applicant's separation packet, dated 8 May 1992, but the packet itself is not available for review. In addition to the commander's request, the applicant's service record has the applicant's statement and four letters of support. (1) In an undated letter, the applicant stated he wanted to remain on active duty, but he would need to move to a different unit; this was because his leaders had already labeled him a "problem child," which was something he did not need. The applicant said he had written numerous statements in military form, and, each time, "it comes back denied, even though I have written sworn statements." As an alternative, the applicant now wanted to take a "humanity" approach, and he went on to explain he would excel if allowed to transfer to another unit; he acknowledged he had made mistakes, and, after that, things had gone downhill, in that he had both military and family problems. (a) The applicant noted he had served in two other units, and he never had a problem, but, when he first came to his current unit, the level of leadership and troop confidence in the chain of command were low; the applicant declared that new Soldiers coming into the unit could all sense the unit was "messed up." Now that he was leaving, the applicant had noticed leadership improvements, and it seemed the chain of command cared more about its Soldiers. (b) The applicant continued, "I know I'm taking a chance by saying that but people can't be afraid to help change the Army, or at least a messed up unit, because by changes, that makes the Army more efficient and greater." The applicant added he did not mean to be disrespectful, and he acknowledged his unit had done some great "engineering tasks." Nonetheless, he and other Soldiers felt the chain of command was not really giving them a chance. (2) The four letters of support affirmed the applicant had been present for extra duty, and described the applicant as a good Soldier; in addition, the writers expressed their perceptions of the unit (i.e., a leadership that was quick to punish and slow to help). h. Although the applicant's separation packet is unavailable for review, the record does include his DD Form 214, which shows, effective 24 June 1992, the applicant was separated under honorable conditions (general), based on paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The applicant completed 1 year, 5 months, and 8 days of his 5-year enlistment contract, and he was awarded or authorized the following: * Southwest Asia Service Medal with one bronze service star * Kuwait Liberation Medal * National Defense Service Medal * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar 4. During the applicant's era of service, commanders could initiate separation action against Soldiers who had committed a serious military or civilian offense for which the Uniform Code of Military Justice (UCMJ) authorized a punitive discharge for the same or similar offense. (The applicant's service record is void of documentation showing which Article(s) of the UCMJ Article the applicant violated.) 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 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 (Honorable Discharge) stated an honorable character of service represented a 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. Separation authorities could furnish an honorable discharge could be furnished when subsequent honest and faithful service over a greater period outweighed any disqualifying entries in the Soldier's military record. 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. (1) Commanders were to use the notification procedure, outlined in AR 635-200, when initiating separation action. The procedure required the commander to advise the Soldier, in writing, that he was recommending the applicant's separation, and the commander was to cite the specific allegations upon which he/she had based the action. In addition, the commander was to inform the Soldier of the least favorable character of service he/she could receive, the type of discharge, and the following rights: * consult with consulting counsel within a reasonable time (not less than 3 days) * submit statements in his/her own behalf * obtain copies of documents to be sent to the separation authority * waive the foregoing rights (2) An additional right was extended to Soldiers who had accumulated 6 or more years of active duty and reserve service; these Soldiers could request a hearing and a personal appearance with counsel before an administrative separation board. 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. 4. AR 15-185 (ABCMR), states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007914 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007914 1 ABCMR Record of Proceedings (cont) AR20210007914 1