ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:        9 April 2019

	DOCKET NUMBER:  AR20160016392


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 14 October 2016
* Department of Veterans Affairs (VA) Hospital Fax Transmittal Sheet

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (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:

	a.  His discharge should be changed because he was only a kid when he joined the Army.  He was 17 years old, he was a great Soldier, and he did what he was told to do until he went overseas.  He struggled with things he saw and did when he was overseas and he still struggles to this day.  He can't sleep at night, he takes pills, and he believes the Army let him down when they kicked him out.

	b.  He fought hard for his brothers and sisters and he was just driven to the front gate at Fort Carson, CO and was told to "have a good life."  He had no money and no family and it took him 3 months to make it back to his hometown in Pennsylvania.

	c.  He knows he made mistakes and he is paying for them every day.  He is just asking that consideration be given to the fact that he was just a kid, lost overseas, and the only way he knew how to cope was drinking because it took all of his feelings away.  He never got into trouble when he was not drinking.  He wants to wear the medals he earned overseas with pride.

3.  The applicant enlisted in the Regular Army on 5 March 2003, at age 17 and with parental consent.  He completed training as a power generation equipment repairer.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ) shows the applicant was in Korea on 20 November 2003, when he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ, for failure to obey a lawful order by wrongfully drinking alcohol while under the legal drinking age.

5.  The applicant was in Iraq on 21 June 2005, when he accepted NJP under the provisions of Article 15 of the UCMJ, for violating a general order by possessing and consuming alcohol beverages.

6.  A DA Form 4856 (Developmental Counseling Form) shows the applicant was in Iraq on 16 September 2005, when he was counseled for possession and use of marijuana.

7.  A DD Form 2708 (Receipt for Inmate or Detained Person) shows the applicant was detained on 9 December 2005, for underage drinking and for failure to obey a general order.

8.  The applicant was counseled on 22 December 2005, for destruction of government properly. 

9.  The applicant was detained on 24 December 2005, for driving under the influence and for underage drinking.

10.  The applicant was counseled twice on 27 December 2005, for underage drinking, for failure to obey a general order, and for driving under the influence.  He was command referred to Army Substance Abuse Program (ASAP).

11.  The Alcohol and Drug Control Officer (ASAP – Fort Carson) notified the applicant's commander on 13 March 2006 that the applicant failed to attend the Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program on 23 and 24 January 2006.

12.  The applicant was notified that he was being recommended for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c, for commission of a serious offense.  After consulting with counsel, he acknowledged receipt of the notification and waived his right to have his case considered before a board of officers.

13.  The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c.  The separation authority approved the recommendation for discharge on 16 May 2006 and directed that the applicant be reduced to the lowest enlisted grade and separated with a UOTHC character of service.

14.  The applicant was discharged on 23 May 2006, under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct – commission of a serious offense.  He completed 3 years, 2 months, and 19 days of net active service this period.  His 
DD form 214 confirms his service was characterized as UOTHC.

15.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 3 June 2013.  However, he was issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty), which changed his reentry (RE) code from "4" to "3."

16.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

17.  The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the multiple occasions of misconduct, one while being in a deployed environment, the Board concluded that the characterization of service received at the time of discharge was appropriate.  Therefore, the Board recommended denying the applicant’s request.  

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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7b provides 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.

   c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 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.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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.  

	a.  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 on the basis of equity, injustice, or clemency grounds, Boards 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.  

	b.  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.


ABCMR Record of Proceedings (cont)	 AR20160016392


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