IN THE CASE OF: BOARD DATE: 14 September 2023 DOCKET NUMBER: AR20230000990 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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, 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 correction should be made because he was told his general discharge would be upgraded to honorable. He really didn’t deserve this type of discharge. 3. The applicant enlisted in the Regular Army on 12 July 1976, and he was discharged on 20 June 1979. The available record is void of a DD Form 214 for this period of service. 4. The applicant reenlisted in the Regular Army on 21 June 1979 and again on 2 August 1983. The highest grade he attained was E-5. 5. On 6 February 1981, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order, on or about 4 November 1980. His punishment included reduction in grade to E-2, forfeiture of $283.00 pay per month for two months, and 45 days extra duty and restriction. 6. On 17 November 1981, the applicant was arrested by the Junction City Police Department, KS, and charged with possession of an open container of an alcoholic beverage in public. He pled guilty in civil court and was fined $40.00 plus $10.00 in court fees. 7. Before a civilian court on 31 January 1984, at Geary County, KS, the applicant was found guilty of driving while under the influence of intoxicating liquor and also of transporting an open container of alcoholic liquor, on or about 30 July 1983. The court sentenced him to thirty days in the county jail with probation of 28 days of said sentence, 140 hours of public service work, driver’s license suspension for six months, and $354.00 in fines and court fees. 8. The applicant received formal counseling on the following dates/for: * 18 February 1984, failure to pay debts * 28 February 1984, lateness * 15 March 1984, unsatisfactory progress with drinking habits and indebtness * 19 April 1984, failing to properly clean and clear his on-post quarters 9. A memorandum, dated 5 September 1984, shows the applicant was referred to social work services for counseling and treatment for spouse abuse/assault. 10. On 16 October 1984, the applicant accepted NJP under Article 15 of the UCMJ for operating a vehicle while drunk on or about 1 October 1984; and disobeying a lawful order on or about 1 October 1984. His punishment included reduction in grade to E-4, and forfeiture of $450.00 pay per month for two months. 11. On 29 October 1984, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 12. On 9 November 1984, the applicant was given a general officer letter of reprimand for his conviction of drunk driving. 13. The applicant's immediate commander notified him on 28 December 1984, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraphs 14-12b and c, for misconduct. 14. On 7 January 1985, the applicant consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated separation action. Following his consultation, he requested the right to personally appear before, and to have his case considered by a board of officers. a. He declined to submit a statement in his own behalf. b. He acknowledged he understood that as a result of issuance of a discharge under honorable conditions (general), he may be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. 15. On 8 January 1985 the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraphs 14-12b and c, for misconduct. As the specific reasons, his commander cited that the applicant had committed several serious offenses, both civil and military and he had demonstrated discreditable conduct and conduct violative of accepted standards found in the UCMJ and in the time honored traditions of the Army. 16. On 15 February 1985, a board of officers convened to determine if the applicant should be eliminated from service. The Board recommended that he be separated from service for a pattern of misconduct. The Board further recommended issuance of an under honorable conditions (general) discharge. 17. Consistent with the board’s findings and recommendation, the separation authority approved the recommended discharge on 6 March 1985. 18. The applicant was discharged on 5 April 1985. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct. His service was characterized as under honorable conditions (general). He completed 5 years, 9 months, and 15 days of net active service this period. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon, and the Sharpshooter Marksmanship Qualification Badge (Hand Grenade and M-16 Rifle). 19. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment (see Administrative Notes). 20. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, 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. The Board concurs with the corrections described in the Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :xx :xx :xx 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 making the corrections described in Administrative Note(s) below. 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 character of service. 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): A review of the applicant's record shows his DD Form 214, for the period ending 5 April 1985 is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790621 UNTIL 830801 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 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 3. Army Regulation 635-200 sets 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 4. 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/NR) 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) AR20230000990 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1