IN THE CASE OF: BOARD DATE: 15 November 2021 DOCKET NUMBER: AR20210012409 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) FACTS: 1. The applicant did not file within the 3-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, in effect, he was discharged with an under honorable conditions (general) discharge. He would like it changed to honorable. He was told it would automatically change to honorable after 6 months. 3. On 30 May 1986, the applicant, at the age of 19 years old, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 12 August 1986, he was discharged from the USAR DEP and entered active duty for a period of 4 years. The applicant's DA Form 2-1 (Personnel Qualification Record) shows he entered basic training on 18 August 1986 and advanced individual training (AIT) for the military occupational specialty (MOS) of 44B (Welder) on 19 October 1986. He arrived at his first duty station in Germany on 23 March 1987. 4. In April 1987, he received a certificate of training for successfully completing German Headstart. 5. On 25 November 1987, a Personnel Action was completed promoting the applicant to Specialist (SPC) effective 1 December 1987. On 18 October 1989, the applicant was promoted to SPC effective 1 November 1989. His service record is void of reduction orders from SPC after 1 December 1987. 6. On 15 December 1988, permanent orders were published awarding the applicant the Army Achievement Medal for meritorious service from 23 March 1987 to 17 March 1989. 7. On 16 March 1989, permanent orders were published awarding the applicant the Army Achievement Medal for meritorious service from 23 March 1987 to 17 March 1989. 8. The applicant received General Counseling Forms on: a. 30 October 1989, monthly counseling. He received four average ratings and four above average ratings. The applicant concurred with the counseling and signed the form. b. 2 January 1990, for being out of ranks for physical training formation and for having alcohol on his breath. The applicant concurred with the counseling and signed the form. c. 22 February 1990, for being out of ranks. The applicant concurred with the counseling and signed the form. d. 23 February 1990, for being out of uniform because his rank was missing from his hat. The applicant concurred with the counseling and signed the form. e. 26 February 1990, monthly counseling. He had raised his GT score, on 23 February he was out of uniform and missing his rank on his hat, on 22 February he was out of ranks, he was constantly loosing articles from his uniform, the military police (MP) confiscated a stolen firearm from his vehicle, he had been notified of having 14 bad checks, he owes money to a jewelry company, he owed a Ford dealership money, and he had been picked up by the MPs on 26 February for driving under the influence (DUI). The applicant concurred with the counseling stating, he had initialed the "I Concur" portion but he didn't look at the bottom portion of the counseling form. He doesn't agree with the part of the counseling that states he was not willing to help himself or the part about a bar to reenlistment. He was willing to help himself but it was going to take time. He didn't consider himself helpless and not wanting to help himself. The part about the DUI was also a mistake, he wasn't driving. The applicant signed the form. f. 2 may 1990, for being out of ranks at physical training formation. The applicant non-concurred with the counseling stating, he tried to explain the reason he was late for formation which was the traffic was heavier than normal that morning causing him to fall behind schedule and miss formation. The applicant signed the form. 9. On 9 November 1989, permanent orders were published awarding the applicant the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity in active Federal military service from 13 August 1986 to 12 August 1989. 10. On 29 November 1989, permanent orders were published awarding the applicant the Army Achievement Medal for meritorious achievement from 28 August 1989 to 7 November 1989. 11. On 1 March 1990, the applicant received a Letter of Reprimand for DUI with a blood alcohol test registering .18 percent. The applicant acknowledged receipt of the letter of reprimand and submitted a statement, which states the reason he feels the DUI should go in his personnel file is that he planned on making the Army a career. He also felt that he was done wrong because at the time of the incident he wasn't driving the vehicle. He had someone else driving. When they pulled into the parking lot, the driver got out and ran into the barracks to see a friend. The applicant was walking across the road. The MP pulled up and asked for his driver's license and identification card. He was trying to explain the situation to the MP but the MP didn't want to listen. The MP took him in and charged him with DUI. The applicant's chain of command recommended filing the reprimand in his official military personnel file. The official filing documentation of the reprimand was not available for the Board's consideration. 12. On 13 March 1990, the applicant's duty status was changed from Present for Duty (PDY) to confined by civil authorities. On 14 March 1990, his duty status was changed from confined by civil authorities to PDY. There was no information regarding why he was confined by civil authorities. 13. On 30 March 1990, a Bar to Reenlistment was initiated against the applicant. On 6 March 1990, he had a dishonored check notification; on 25 February 1990, he was charged with DUI; on 15 February 1990 and 20 January 1990, he had dishonored check notification. The applicant had demonstrated a pattern of continuous indebtedness despite numerous counseling sessions and effort of his chain of command. He continued the unacceptable pattern of misconduct which was demonstrated by his lackadaisical attitude and his inability to become a positive Soldier. The applicant should be denied the opportunity for continued service. The applicant had been furnished a copy of the Bar to Reenlistment, had been counseled regarding the Bar to Reenlistment, and did not desire to submit a statement on his own behalf. On 12 April 1990, the Bar to Reenlistment was approved and the applicant did not appeal the Bar to Reenlistment. 14. On 19 April 1990, the applicant underwent a Report of Mental Status Evaluation, which states the applicant was evaluated on referral from the Chaplain. He was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative or judicial proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by the command. 15. On 15 May 1990, the applicant accepted NJP for wrongful use of cocaine. His punishment included reduction to the grade of PVT, forfeiture of $362 pay for two months, and extra duty for 45 days. He did not appeal his punishment. 16. On 6 June 1990, his immediate commander initiated separation of the applicant under the provisions of Army Regulation 635-200 (Enlisted Separation) paragraph 14- 12c, commission of a serious offense for wrongful use of cocaine. The commander was recommending the applicant receive an under honorable conditions (general) discharge. The applicant acknowledged receipt of the notification of separation on 6 June 1990. 17. On 6 June 1990, he consulted with legal counsel and was advised of the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effects, and the rights available to him. He did not submit a statement on his own behalf. 18. On 9 June 1990, an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Progress report shows the applicant received awareness education in group counseling. The counselor's assessment of the applicant's progress was unsatisfactory. His commander's appraisal of progress and military effectiveness was unsatisfactory. 19. The applicant's chain of command recommended approval of the separation with an under honorable conditions (general) discharge and on 15 June 1990, the appropriate separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, and directed an under honorable conditions (general) discharge. 20. On 26 June 1990, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he had completed 3 years, 10 months and 15 days of net active service. He was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Army Achievement Medal (1st Oak Leaf Cluster) * Army Good Conduct Medal * Driver and Mechanic Badge (W) * Sharpshooter Marksmanship Badge (Rifle M-16) 21. The applicant requests an upgrade of his discharge because he was told it would automatically be upgraded after six months. a. In regards to the applicant's contention that his characterization of service should have been updated 6-months after his discharge. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. b. Army Regulation 635-200, paragraph 14-12c provides for separation of Soldiers when there is a pattern of misconduct involving acts of drug abuse. Army Regulation 635-200, paragraph 14-12c (2), states first time offenders below the grade of sergeant, or with less 3 years of total military service, Active and Reserve may be processed for separation as appropriate. The applicant was discharged in the rank of PV2. c. In reaching its determination, the Board can consider the applicant’s petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not 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 frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, 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. ADMINISTRATIVE NOTE(S): N/A 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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 establishes policy and prescribes procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge 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. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse. 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. 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, 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. 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) AR20210012409 1 1