IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220007306 APPLICANT REQUESTS: upgrade of his under honorable conditions, general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) 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, U.S. 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 requests and updated DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant had prior enlisted service in the U.S. Marine Corps (USMC). His DD Form 214 shows he entered active duty on 31 October 1979. He was honorably discharged on 30 October 1983, having completed 4 years of active service. 4. The applicant enlisted in the Regular Army on 21 October 1987, for 4 years. His military occupational specialty was 62E (Heavy Equipment Construction Operator). 5. The applicant served in Korea from 20 January 1988 through 18 January 1989 and he served in Saudi Arabia from 28 October 1990 through 17 April 1991. 6. The applicant reenlisted in the Regular Army on 22 May 1991, for 5 years. 7. The applicant was arrested by the Police Department on or about 30 January 1994 and charged with driving under the influence (DUI) of alcohol, driving while his license was denied, suspended, or revoked, and careless driving. This was the second time the applicant had been apprehended for DUI. The first DUI charge was downgraded to a lesser included offence. The applicant was allowed to enter into a deferred sentencing agreement. As a result, there was "no official record" of his first DUI conviction. The applicant was subsequently apprehended for first degree sexual assault, once again the charge was downgraded, and he was allowed to plead guilty to a misdemeanor charge. 8. The applicant accepted nonjudicial judicial punishment under Article 15, of the Uniform Code of Military Justice (UCMJ) on 12 August 1994 for operating a vehicle while drunk on or about 30 January 1994. His punishment consisted of reduction to E-4, extra duty, and restriction. 9. The applicant was psychiatrically cleared for administrative action deemed appropriate by command on 26 September 1991. He had the mental capacity to understand and participate in proceedings and was mentally responsible. He had a history alcohol abuse. 10. The applicant was reported as absent without authority leave on 20 October 1994. 11. The applicant accepted NJP under Article 15 of the UCMJ, on 9 November 1994 for without authority absenting himself from his unit on or about 20 October 1994. His punishment consisted of extra duty. 12. The applicant’s immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. 13. The applicant consulted with counsel and acknowledged that he was advised of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. He elected to a submit statement in his own behalf. In his statement, he asked to be considered for an honorable discharge. He had served in multiple units and had been honorably discharged from the USMC and he was a Persian Gulf Veteran. 14. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14, with a general discharge, under honorable conditions. 15. The applicant's chain of command recommended the applicant be issued a general, under honorable conditions discharge. 16. The separation authority approved the recommended discharge on 5 December 1994 and directed the applicant be and issued a under honorable conditions (general) discharge. 17. The applicant was discharged on 14 December 1994. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His characterization of service was under honorable conditions (general). He completed 7 years, 1 month, and 24 days of net active service. He was awarded or authorized the: Army Commendation Medal (2nd award), Army Achievement Medal (3rd award), Army Good Conduct Medal, Marine Corps Good Conduct Medal, National Defense Service Medal, Southwest Asia Service Medal (2nd award), Noncommissioned officer Professional Development Ribbon, Army Service Ribbon, Kuwait Liberation Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar. 18. By regulation, Soldiers are subject to separation under the provisions Army Regulation 635-200, Chapter 14, for 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. 19. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency consideration for requesting upgrade of discharge characterization of service. Upon review of the applicants petition and available military records the Board found insufficient evidence of in-service mitigation to overcome the misconduct. He was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 2. However, evidence in the applicant’s record show he was assigned to Co B 44th Engineer BN in Korea, based on this the applicant met the criteria for award of the Korea Defense Service Medal. In addition, the Board agreed the applicant’s DD Form 214 did not reflect his continuous honorable service for the period of 21 October 1987 until 22 May 1991. Therefore, the Board granted partial relief to award the Korea Defense Service Medal and annotate in block 18 his continuous honorable service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the Korea Defense Service Medal and adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous Honorable active service from 21 October 1987 until 22 May 1991.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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, U.S. 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 under other than honorable conditions discharge was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 3. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20220007306 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1