IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210010834 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, if what happened took place today, he does not think the Army would discharge him; he got into a nonservice-related car accident, and he did not have auto insurance. The applicant maintains the company that sold him his car led him to believe the deal included auto insurance, but what they actually sold him covered only his vehicle (i.e. an extended warranty). The applicant subsequently had a car accident and got into trouble with a civilian court; the accident caused no injuries, but the civilian authority nonetheless incarcerated him for 30 days because he had no liability insurance. The applicant contends he always paid his insurance bill and never realized there was such a thing as insurance only covering an owner's car, but not providing liability coverage for the other vehicle. He asserts that upgrading his character of service will not harm either the Army or the Department of Veterans Affairs (VA). 3. The applicant's service records show: a. On 21 August 1997, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. Upon completion of initial entry training, and the award of military occupational specialty 11M (Fighting Vehicle Infantryman), orders assigned the applicant to Fort Stewart, GA, and he arrived at his unit, on or about 20 December 1997. b. The applicant's separation packet is unavailable for review, but his record does include his DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows, effective 15 April 1999, the applicant was separated under honorable conditions (general), based on paragraph 14-12b (A Pattern of Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The applicant completed 1 year, 7 months, and 18 days of his 3-year enlistment contract, with two periods of lost time (19981209-19981215 and 19990217-19990302). Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the Army Service Ribbon. 4. The applicant argues, in effect, the Board should grant him an upgraded character of service because, if what happened to him occurred today, the Army would not discharge him. The applicant got into a nonservice-related car accident, and he did not have auto insurance; civilian authorities jailed him after he had a car accident based on having no liability coverage. a. The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge. However, because his service records contain his DD Form 214, which lists the regulatory basis for his separation and affirms his under other than honorable conditions discharge, the Board presumes the applicant's leadership completed his separation properly. That presumption notwithstanding, the absence of the applicant's separation packet represents an administrative irregularity, in that the version of AR 600-8-104 (Military Personnel Information Management/Records) in effect at the time required supporting documents for approved separation actions to be maintained in the affected Soldiers' official military personnel file. b. During the applicant's era of service, commanders could initiate separation action, under paragraph 14-12b, AR 635-200, against Soldiers who displayed a pattern of misconduct consisting solely of minor military disciplinary infractions. c. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, 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: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. The Board noted the multiple offenses leading to the applicant’s separation and the absence of evidence attesting to post-service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 14-12b applied to Soldiers who displayed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and/or conduct that were prejudicial to good order and discipline. (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, offiial 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 600-8-104 (Army Military Human Resources Records Management), in effect at the time, required supporting documents for an approved separation actions to be maintained in the affected Soldiers' OMPF. 5. 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) AR20210010834 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1