IN THE CASE OF: BOARD DATE: 1 September DOCKET NUMBER: AR20210009903 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statements of Support FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 seriously regrets any and all unfortunate circumstances that led to his current discharge. He provides multiple letters of recommendation and/or support (enclosed for the Board's review) as follows: a. A Fire Chief states the applicant was a very valuable member of the Fire Department, obtaining the rank of Captain/EMT Firefighter. He was instrumental in their training department. He was also a leader for younger firefighters. He had 15 years of dedicated service to the citizens of the fire district. b. Mr. states he met the applicant in 2008 while working together and they quickly became friends. As someone with a strong work ethic, willingness to help others and volunteered in their small community, he knew the applicant was a good person and someone he respected. In 2010, he started his own trucking business. During the busy harvest season he knew he could rely on the applicant to relieve him from driving so that he could do truck maintenance and necessary paperwork. The area farmers he hauled grain for also knew they could depend on him to get the job done correctly. He is also a volunteer fireman and was active in his church. c. A pastor states the applicant was one of his faithful parishioner. He met him at the parsonage (pastor's home) while he was repairing a dryer vent window in the basement. He shares this story because the applicant has always been faithful in the small and big things. He is also active in a Volunteer Fire Department. He witnessed his devotion to duty and skill in leading men and women in combatting fires and handling rescue calls. He was always available and prepared as part of the Emergency Rescue Squad and Fire Service. d. Ms. describes him as a man of great integrity, morals and work ethic. He has served the country (Army) and his community (volunteer fire fighter). He was married to her sister for 23 years and they had four daughters together. He worked a job in a half or two jobs most of their growing years to provide for all of their needs and his wife's medical expenses. His wife of twenty-three years had seventeen years of major health problems and was unable to work and care for her daughters for most of that time. After many years of surgeries and sickness she passed away. He was continually loyal to his family and provided for all their needs. He doesn't ask for handouts or expect tax payers to support his family. He has endured many heart breaks and financial burdens but always finds a way lend a helping hand to others. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 4 October 1983 and held military occupational specialty 13B (Cannon Crewmember). He served in Germany from January 1984 to January 1986. b. On 8 July 1987, he tested positive for cocaine. c. On 25 August 1987, he accepted nonjudicial punishment under Article 15 for wrongfully using cocaine. His punishment consisted of reduction to specialist four/E-4 and forfeiture of pay. d. On 1 September 1987, his immediate commander initiated a Bar to Reenlistment Certificate against him citing wrongful use of cocaine. He was furnished with a copy of this bar but elected not to submit a statement. The bar was approved. e. On 3 September 1987, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12d, for misconduct - commission of a serious offense, wrongfully using and possessing illegal drugs. He advised him of his rights. f. The applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected not to submit a statement in his own behalf. He waived consideration of his case by an administrative separation board and personal appearance before such board. He further indicated that he understood: * He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge g. Subsequent to his acknowledgement, the applicant's immediate commander formally initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. h. On 10 September 1987, the separation authority approved the applicant's discharge under the provisions of AR 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions (general). On 18 September 1987, the applicant was discharged accordingly. i. His DD Form 214 confirms he was discharged under AR 35-200, chapter 14, by reason of misconduct - commission of a serious offense with a character of service of under honorable conditions (general). This form further confirms he completed 1 years, 11 months, and 18 days of active service. His DD Form 214 shows he was awarded or authorized the: * Parachutist Badge * Expert Badge with Rifle (M-16) and Grenade Bars * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal * Army Achievement Medal * NCO professional Development Ribbon 4. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 5. By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for a commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 6. 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 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 to weigh a clemency determination. The applicant provided post-service character letters of support to weigh a clemency determination. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct. 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. Therefore, the Board denied relief. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20210009903 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1