BOARD DATE: 1 May 2020 DOCKET NUMBER: AR20200001081 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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 would like his discharge upgraded so he can get a good job and education benefits for college. 3. The applicant enlisted in the Regular Army on 29 October 2008. 4. He served in Iraq from 10 October 2009 through 21 September 2010. 5. Two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) show he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the following occasions for the following misconduct: * on 4 March 2010, for willfully disobeying an order from a noncommissioned officer (NCO) on 16 February 2010, to not wear an iPOD while on patrol in Iraq * on 12 July 2011,at Fort Benning , GA, for failing to go to accountability formation at 0730 on 26 May 2011 and for failing to go to accountability formation at 0500 on 1 June 2011 6. His records contain numerous DA Forms 4856 (Developmental Counseling Form) showing he was counseled for either failing to report to accountability formation, failing to report to work, and/or failing to be in the proper uniform with the required items to formation on the following occasions: * 13 December 2010 * 19 May 2011 * 20 May 2011 * 26 May 2011 * 31 May 2011 * 1 June 2011 * 8 July 2011 7. A DA Form 3822 (Report of Mental Status Evaluation), dated 27 July 2011, shows a. The applicant underwent a mental status evaluation on the date of the form. He was found fit for full duty, including deployment and cleared for administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14. b. He was deemed to be able to understand and participate in administrative proceedings. He could appreciate the difference between right and wrong. He med the medical retention requirements and did not qualify for a Medical Evaluation Board (MEB). c. He was diagnosed with anxiety disorder, not otherwise specified and adjustment disorder with depressed mood. He screened negative for both post-traumatic stress disorder (PTSD) with a score of 4 and mild traumatic brain injury (mTBI) with a score of 0. 8. A DD Form 2808 (Report of Medical Examination), dated 27 July 2011, shows he underwent a medical examination on the date of the form for the purpose of separation and was found qualified for service and cleared for separation with a physical profile rating of “1” in all categories. 9. On 16 August 2011, the applicant was notified by his immediate supervisor of his initiation of action to separate him with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct. He was advised of his right to consult with Counsel and submit statements in his own behalf. 10. On 16 August 2011, he acknowledged receipt of the notice from his commander informing him of the basis for the action to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200, chapter 14. He acknowledged having been advised of his right to consult with Counsel and did consult with Counsel. He did not submit statements in his own behalf 11. On 16 August 2011, his battalion commander recommended approval of the separation action for a pattern of misconduct with a characterization of general, under honorable conditions. On 18 August 2011, a legal review found the separation action legally sufficient. 12. On 25 August 2011, the approval authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14 for a pattern of misconduct with a service characterization of general, under honorable conditions. 13. His DD Form 214 shows he was discharged accordingly on 16 September 2011, under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct, after 2 years, 10 months, and 18 days of net active service. His service was characterized as general, under honorable conditions. 14. In February 2012, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable. On 1 February 2013, the ADRB denied his request for relief, determining his discharge was both proper and equitable. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was 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 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 and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. 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. 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered 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. 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. c. 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001081 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1