ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 February 2019 DOCKET NUMBER: AR20160014279 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to a general discharge. He also requests a personal hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100029368, on 26 July 2011. 2. The applicant states he was not supposed to be discharged. He was sent in error to three places for training. He was not supposed to be there. He was supposed to report to Langley, VA; but the people in charge acted as if they did not know what was going on. Because he requested to honor his contract, he was sent to the wrong place. 3. Review of the applicant's records shows: a. He enlisted in the Regular Army (RA) on 30 July 1999. His enlistment contract shows he enlisted for training in military occupational specialty (MOS) 92Y (Unit Supply Specialist). b. He completed training at Fort Lee, VA, and he was awarded MOS 92Y. He served in Alaska. c. He reenlisted in the RA on 6 September 2001. His reenlistment contract shows he reenlisted for station of choice (Fort Bragg, NC). d. On 22 February 2002, he accepted nonjudicial punishment under Article 15 for wrongfully using marijuana. His punishment consisted of a reduction to E-2 (suspended until 1 July 2002), forfeiture of pay, extra duty, and restriction. a. e. On 8 July 2002, he departed his unit in an absent without leave (AWOL) status, and on 7 August 2002, he was dropped from the rolls as a deserter. He returned to military control on 12 November 2002. f. On 7 February 2003, he underwent a mental status evaluation. His Report of Mental Status Evaluation showed no evidence of a mental disorder and psychiatrically cleared him for administrative actions. g. On 13 February 2003, he was convicted by a summary court-martial of two specifications of AWOL and one specification of wrongfully using marijuana. The court sentenced him to reduction to E-1, forfeiture of pay, and confinement for 1 month. h. On 8 April 2003, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense (AWOL and marijuana). He recommended an under other than honorable conditions discharge. i. On 8 April 2003, he acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and was advised 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 that were available to him. He acknowledged he understood: * he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of a discharge under other than honorable conditions j. His immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200 for misconduct. His intermediate commander recommended approval. k. On 16 April 2003, the separation authority approved the recommendation under the provisions of chapter 14 (Misconduct) of AR 635-200 and directed the issuance of an under other than honorable conditions discharge. Accordingly, the applicant was discharged on 2 May 2003. l. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of misconduct with an under other than honorable conditions characterization of service. This form confirms he completed 3 years, 9 months, and 3 days of active service (his lost time is not listed). His DD Form 214 further shows he was awarded or authorized: a. * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Parachutist Badge m. On 26 July 2011, the Board considered his petition for an upgrade but found no error or injustice. The Board denied his request. 4. AR 635-200 states a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under paragraph 14-12(c), misconduct – serious offense. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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. 6. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the characterization of his discharge was warranted as a result of misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR20100029368, on 26 July 2011. SIGNATURE: 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. AR 635-200 set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the version in effect at the time 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. 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 may direct a general discharge if such is merited by the Soldier's overall record. b. Paragraph 3-7a provides 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. c. 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. 1. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.