IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200002287 APPLICANT REQUESTS: in effect, an upgrade of his (general) under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) worksheet * Awards, accolades and certificates * Support letter by M.E.M., 25 August 2004 * Email from 16 November 2008 * Support letter by H., 13 June 2013 * References sheet * Resume and employment documents * Educational and Training Pursuits * Community Service documents * Medical records 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 his separation came from many discreditable documents that were imprecisely placed, while other positive documents that exemplify a more compelling and positive outlook of the total Soldier/Veteran had been either excluded, misrepresented and or overlooked. He feels he was not provided a fair judicial process. He had a plea agreement in order to avoid an unnecessary chapter process to allow him to retain his top secret security clearance, receive favorable discharge as described in the DD Form 214 worksheet, and avoid any negative discharge. He claims many if not all of the chapter 14 documentation (request for counsel in particular) was signed by his chain of command near the very end of his separation date, which was well after he had received his initial separation brief and DD Form 214 Worksheet that showed his service as honorable. After a most serious motor vehicle accident, in light of other injuries incurred in-service, it was exclaimed to him by medical professionals at both Walter Reed and the Pentagon that he should be evaluated for a medical chapter; but, in fear of a negative outlook and embarrassment, after having been noted as a successfully fit Soldier, he avoided any decision to move forward with a medical review. The entire personal statement is attached in documents. 3. The applicant provides * DD Form 214 worksheet showing an honorable character of service for misconduct in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c(1) * Awards, accolades and certificates showing the many achievements he had received throughout his career * Support letter by M., 25 August 2004 which discusses the work ethic of the applicant prior to his separation * Email from 16 November 2008 in regards to outstanding assistance from the applicant while serving in Iraq * Support letter by H.,13 June 2013 in regards to the applicant’s work ethic and timeliness of his work as it pertains to a recommendation * References sheet showing references for employment * Resume and employment documents showing his qualification and work history * Educational and Training Pursuits showing his educational accomplishments and training completed in relation to his area of expertise * Community Service documents showing that he has contributed to the community with his time and assistance * Medical records showing his medical documentation to include profiles, surgeries, chronological record of medical care, radiological reports, and other medical documents regarding his health 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 11 May 1999. He held military occupational specialty (25B) Information Systems Operator-Analyst. The highest grade he attained was specialist (E-4). b. His Enlisted Record brief and Personnel Qualification Record shows he served in Korea from 15 December 1999 until 12 December 2000. c. On 25 August 2003, in the Circuit Court for the County of K__ the applicant pleaded guilty to reckless driving – speeding 102 miles per hour (mph) in a 65 mph zone. The court ordered him to confinement in jail for a period of 60 days, a fine of $1,000.00 and court costs. The Court suspended the execution of 50 days of the jail sentence, upon the following conditions: that the defendant keep the peace, be of good behavior and violate none of the penal laws of the Commonwealth or any other jurisdiction for a period of 2 years; that the defendant pay the fine and court courts at a rate of $150.00 per month beginning 1 October 2003. The court also ordered that his motor vehicle operator’s license is suspended for a period of 6 months and he is remanded to jail. d. On 25 August 2003, his duty status was changed from present for duty (PDY) to confined to civilian authorities (CCA) effective 1800 hours. e. On 30 August 2003, his duty states was changed from CCA to PDY effective 1800 hours. f. On 6 July 2004, his immediate commander notified him of his intent to initiate action to separate him in accordance with Army Regulation (AR) 635-220 (Active Duty Enlisted Administrative Separations), chapter 14-12c, for misconduct. The reasons for his proposed action are based on numerous traffic violations; disrespectful behavior towards a commissioned officer; disrespectful behavior towards a noncommissioned officer (NCO); disobedience towards a NCO; false official statement; and failure to report at the time prescribed to his appointed place of duty. The applicant acknowledged receipt of the foregoing correspondence. g. On 24 August 2004, he consulted with legal counsel on the basis for the contemplated action to separate him for patterns of misconduct under AR 635-200, chapter 14, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. * He waived consideration of his case by an administrative separation board * He waived personal appearance before an administrative separation board * He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * He understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * He understood he may expect to encounter substantial prejudice in civilian life * He understood that if he received a discharge certificate/character of service which is less than honorable, he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * He understood that he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge h. His chain of command recommended that he be separated prior to the expiration of his current term of service and that his service be characterized as general, under honorable conditions. i. On 23 November 2004, the separation authority approved separation in accordance with AR 635-200 chapter 14 paragraph 14-12c (Commission of a Serious Offense). He directed the applicant receive a general, under honorable conditions discharge. j. Accordingly, the applicant was discharged on 21 December 2004. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank of private first class/E-3 under the provisions of AR 635-200 paragraph 14-12c with an under honorable conditions (general) characterization of service. He completed 5 years, 7 months, and 11 days of active service. He was awarded or authorized: * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Joint Chiefs of Staff Identification Badge 5. On 1 June 2016, the Army Discharge Review Board (ADRB) notified the applicant after careful review of his application, military records and all other available evidence, they determined he was properly and equitably discharged and his request was denied. 6. By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 deals with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 7. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination 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 further found his post-service achievements insufficiently mitigating to support a favorable 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 (Separation for Misconduct) deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. a. Paragraph 3-7a states that 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. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 3. AR 600-8-22 (Military Awards) provides for the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 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/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 based on 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002287 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1