BOARD DATE: 11 December 2018 DOCKET NUMBER: AR20160012066 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. BOARD DATE: 11 December 2018 DOCKET NUMBER: AR20160012066 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 December 2018 DOCKET NUMBER: AR20160012066 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his general discharge to an honorable discharge. 2. The applicant states he would like his discharge upgraded so he can receive 100 percent of his Post-9/11 GI Bill benefits instead of 70 percent so he can attend a flight school. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with supporting document(s): * Permanent Orders 094-653, Headquarters, 10th Mountain Division (Light Infantry), dated 4 April 2002 * DA Form 638 (Recommendation for Award), undated * DA Form 4980-18 (Army Achievement Medal Certificate), dated 26 April 2002 * Joint Service Commendation Medal Narrative * DD Form 2413 (Joint Service Commendation Medal Certificate) * DA Forms 87 (Certificate of Training), dated 28 March 2003 and 11 August 2003 * DD Form 256A (Honorable Discharge Certificate), dated 10 September 2003 * DA Form 4980-14 (Army Commendation Medal), dated 26 October 2003 * Certificate of Appreciation, undated * Certificate of Achievement, undated 2. The following evidence from the applicant's service records and Department of the Army and Department of Defense records and systems: * DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 3 January 2001 and 11 September 2003 * Memorandum, 10th Mountain Division (Light Infantry), Fort Drum, dated 2 February 2004, subject: Positive Urinalysis Notification * DA Form 4856 (Developmental Counseling Form), dated 6 February 2004 * DA Form 3822-R (Report of Mental Status Evaluation), dated 15 April 2004 * DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ), dated 23 February 2004 * Enlisted Record Brief, dated 3 May 2004 * Memorandum, Company A, 4th Battalion, 31st Infantry Regiment, 2d Brigade, 10th Mountain Division (Light Infantry), Fort Drum, dated 4 May 2004, subject: Separation under the Provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (should read Paragraph 14-12c) (Commission of a Serious Offense), with acknowledgement, dated 5 May 2004 * Memorandum, Company A, 4th Battalion, 31st Infantry Regiment, 2d Brigade, 10th Mountain Division (Light Infantry), Fort Drum, dated 5 May 2004, subject: Separation under the Provisions of Army Regulation 635-200, Chapter 14-12c (should read Paragraph 14-12c) (Commission of a Serious Offense), with acknowledgement, dated 5 May 2005 (should read 5 May 2004) * Memorandum, Headquarters, 4th Battalion, 31st Infantry Regiment, 2d Brigade, 10th Mountain Division (Light Infantry), Fort Drum, dated 13 May 2004, subject: Separation under the Provisions of Army Regulation 635-200, Chapter 14-12c (should read Paragraph 14-12c) (Commission of a Serious Offense * Memorandum, Headquarters, 2d Brigade, 10th Mountain Division (Light Infantry), Fort Drum, dated 27 May 2004, subject: Separation under the Provisions of Army Regulation 635-200, Chapter 14-12c (should read Paragraph 14-12c) (Commission of a Serious Offense * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Army Discharge Review Board Case Report and Directive, dated 27 August 2008 * Letter, Army Discharge Review Board, dated 27 August 2008 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 Army Board for Correction of Military Records (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, in effect at the time, prescribed the policies and procedures pertaining to the separation of active duty 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 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, and convictions by civil authorities. It provided that 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 discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 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 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. DISCUSSION: 1. While the applicant did not file within the period provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, and has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. He enlisted in the Regular Army on 6 July 2001. 3. He deployed to Kuwait/Afghanistan from 4 January 2002 through 13 April 2002. 4. He was awarded the Combat Infantryman Badge for the period 5-29 March 2002 for engagement in active ground combat. 5. He was awarded the Army Achievement Medal for meritorious service in Afghanistan as a rifleman during the period 8 March 2002 to 8 April 2002. 6. He deployed to Afghanistan from 25 May 2003 through 15 November 2003. 7. He was awarded the Joint Service Commendation Medal for meritorious service in Afghanistan as a member of the Coalition Joint Task Force Phoenix Commanding General's personal security detail from 7 June 2003 to 1 December 2003. 8. He was honorably discharged on 10 September 2003 for immediate reenlistment. He reenlisted on 11 September 2003. 9. He was awarded the Army Commendation Medal for meritorious service as a rifleman on 26 October 2003. 10. He received a Certificate of Achievement and a Certificate of Appreciation for his deployment to Afghanistan.? 11. On 6 February 2004, he was counseled for failing a company urinalysis test on or about 4 February 2004. 12. On 23 February 2004, he received nonjudicial punishment for wrongfully using marijuana between on or about 5 January 2004 and 4 February 2004. His punishment included reduction to rank/grade of private/E-2. 13. On 4 May 2004, his company commander notified him of his intent to initiate separation action against him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. He acknowledged receipt of the notification on 5 May 2004. 14. He consulted with legal counsel on 5 May 2004 and was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He elected not to submit a statement in his own behalf; he waived consideration of his case by an administrative separation board; and he waived consulting counsel and representation. He acknowledged he could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge; he could apply to the Army Discharge Review Board (ADRB) or ABCMR for upgrading if his discharge were less than honorable; and an act of consideration by the ADRB or ABCMR did not imply that his discharge would be upgraded. 15. On 27 May 2004, the Commander, Headquarters, 2d Brigade, 10th Mountain Division (Light Infantry), Fort Drum, approved his separation for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. He directed issuance of a General Discharge Certificate and waived the requirement for a rehabilitative transfer. 16. His DD Form 214 shows he was discharged by reason of misconduct on 6 July 2004 under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed 3 years and 1 day of active duty during this period. His DD Form 214 shows he served in Kuwait/Afghanistan from 4 January 2002 through 13 April 2002 and again in Afghanistan from 25 May 2003 through 15 November 2003. His service was characterized as under honorable conditions (general). 17. On 12 September 2007, he applied to the ADRB for an upgrade of his discharge. He stated he served for 3 years, went to combat twice, was decorated, and reenlisted. He hurt his knee and the Army "flushed" him.? 18. His records contain no evidence of a knee injury. 19. On 27 August 2008, the ADRB denied his request for an upgrade of his discharge. The board determined he was properly and equitably discharged. 20. Discharges under the provisions of Army Regulation 635-200, chapter 14, are involuntary discharges for misconduct. The evidence confirms his separation processing for misconduct was accomplished in accordance with applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Although a discharge under other than honorable conditions was normally appropriate under the authority for his discharge, in his case, the separation authority determined his service warranted a general discharge. 21. The Board should consider the applicant's request for increased veterans' benefits, his deployments, and his commendations in determining whether to grant relief on the basis of equity, injustice, or clemency grounds in accordance with the Under Secretary of Defense for Personnel and Readiness guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012066 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2