ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20160013754 APPLICANT REQUESTS: 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) * Alcohol and Drug Abuse Prevention Training memorandum * Memorandum of psychotherapy * Prime For Life recognition certificate * Character reference letter FACTS: 1. The applicant states while he was in the military he was going through a hard time. He was going through a separation with his wife and they also lost our child. His daughter was the best thing that ever happened to him when his wife gave birth to her. It killed him to see her pass away in front of him. So, he turned to alcohol. No one understood what he was going through because he chose not to tell anyone. Until now, it hurts but he has learned how to handle it in a different manner. He was a great Soldier and he was dedicated to everything he did for this country. He prays that the Board will understand how difficult it was for him being a young Soldier going through that high volume of stress at that moment. 2. The applicant provides: a. Memorandum, dated 23 January 2014, from the Alcohol and Drug Abuse Prevention Training/Prime for Life confirming the applicant had completed 16 hours of education between 22 and 23 January 2014. He was issued a prime for Life Certificate. b. Memorandum, dated 10 February 2014, from a clinical psychologist indicating he had completed three (3) session of psychotherapy at the Embedded Behavioral Health clinic. The sessions were specifically to deal with his grief following the death of his daughter. His grief and the treatment have had no impact on his occupational functioning. He has no prior mental health history. a. c. Character reference letter, dated 3 March 2014, from a chief warrant officer describing him as an honest and highly motivated individual, who made a mistake and would bounce back from his mistake. 3. Review of the applicant's service records shows: a. The applicant enlisted in the Regular Army on 27 January 2010. He reenlisted on 16 January 2013. He was assigned to Fort Benning, GA b. On 9 January 2014, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 for wrongfully making a false official statement that someone ran him off the road. c. On 12 March 2014, the Commanding General, U.S. Army Maneuver Center of Excellence, Fort Benning, reprimanded the applicant for misconduct. On 15 December 2013, a Columbus Police Officer apprehended him for operating a motor vehicle while under the influence of alcohol. He failed the standardized field sobriety tests. A breathalyzer test resulted in a reading of 0.16 grams per 210 liters breath alcohol content, exceeding the legal limit of .08g/210L. He was charged with driving under the influence of alcohol. d. On 21 March 2014, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), due to misconduct - commission of a serious offense (being arrested while driving under the influence of alcohol). The immediate commander recommended an under honorable conditions (general) discharge: e. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He did not qualify for consideration of his case by an administrative separation board and/or personal appearance before a board. He elected to submit a statement in his own behalf (not available for review). He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) * or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded f. Subsequent to this acknowledgement and consultation with counsel, on 3 April 2014, his immediate commander initiated separation action against him due to misconduct, commission of a serious offense in accordance with chapter 14-12c, AR 635-200. The commander opined that the applicant, through his actions, would not become the quality Soldier desired by the Army. The intermediate commander recommended approval. g. On 6 May 2014, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge with his service characterized as under honorable conditions (general). The applicant was discharged accordingly on 22 May 2014. h. His DD Form 214 (certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct – commission of a serious offense, (Separation Code JKQ), under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as under honorable conditions. He completed 4 years, 3 months, and 26 days of active service. He was awarded or authorized: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Noncommissioned Officer Professional Development Ribbon * Parachutist Badge * Driver and Mechanic Badge k. On 8 August 2016, the ADRB reviewed his discharge but found it proper and equitable. The ADRB unanimously voted to deny his petition for an upgrade of his discharge. 4. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 5. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board determined partial relief is warranted. The applicant’s contentions and letter of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete record and did not find any evidence of error, injustice, or inequity. He was discharged for a criminal offense 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. However, the Board noted that the applicant had a prior period of honorable service which is not currently reflected on the DD Form 214 and recommended that change be completed to more accurately depict his military 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 27 January 2010 until 15 January 2013.” 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. 8/9/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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 was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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 states that 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. 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 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. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are 1. 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). //NOTHING FOLLOWS//