ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170001510 APPLICANT REQUESTS: * relief from a re-enlistment bonus debt, this request will be addressed by separate correspondence * an upgrade of his general characterization discharge and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Separation, dated 13 August 2010 * National Guard disapproval dated, 8 September 2015 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he received an adverse decision from the Army Decision Review Board (ADRB). He was in Iraq on Title 10 (T10) orders and was never informed verbally or in writing that he would be separated from the National Guard (NG). He states, there was a reference in his T10 discharge paperwork that the Wisconsin State Adjutant General is the separation authority, but it didn’t say that he was to be separated from the Guard. Paragraph 5 stated “if his recommendation is approved, the proposed separation could result in discharge, release from active duty to the reserve component, or release from custody and control of the Army”. He didn’t receive the first notice notifying him that he was separated from the NG until eleven months after being released from active duty (REFRAD). 3. A review of the applicant’s record shows: a. He enlisted in the Wisconsin National Guard on 12 August 2006. a. b. He was ordered to active duty in support of Operation Iraqi Freedom, and served in Iraq from 3 May 2009 to 27 September 2009. c. He accepted nonjudicial punishment on or around: * 30 June 2009, for willfully disobeying a lawful order from a noncommissioned officer * 7 August 2009, for disrespectful in language toward a noncommissioned officer d. On 11 September 2009, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct, in accordance with paragraph 14-12b of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), due to a pattern of misconduct. The reasons are substandard duty performance, negative counseling statements, and recent and ongoing violations of the Uniform Code of Military Justice (UCMJ) throughout the course of mobilization and deployment. 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 waived consideration of his case by an administrative separation board, requested a personal appearance before a board, and elected not to submit a statement in his own behalf. He acknowledged: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * 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 * he understood if he received a discharge characterization of less than honorable, he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade and an act of consideration by either board did not imply his discharge would be upgraded f. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to a pattern of misconduct in accordance with AR 635-200, chapter 14-12b. g. On 12 September 2009, the separation authority approved the applicant's separation and issued a General, Under Honorable Conditions discharge certificate prior to expiration of his current term of service, under the provisions of AR 635-200, a. Chapter 14-12b, for pattern of misconduct. The applicant was discharge on 21 October 2009. h. His DD Form 214 confirms he was discharged for pattern of misconduct, (Separation Code JKA), under the provisions of AR 635-200, paragraph 14-12b, with his service characterized as under honorable conditions (general). He completed 8 months, and 6 days of active service. He was awarded or authorized the: * Sea Service Deployment Ribbon * Army Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Army Forces Reserve Medal with “M” Device * Combat Action Badge i. Effective 30 September 2010, the separation authority issued discharged orders 257-1015, that separated the applicant from the Army National Guard and as a reserve of the Army. The type of discharge was a General, with a RE Code 3. j. The applicant applied to the Army Discharge Review Board (ADRB), who reviewed his discharge on 6 December 2016 and 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. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that they can reach a fair and equitable decision without a personal appearance from the applicant. Based upon the pattern of misconduct, the lack of character evidence presented by the applicant showing he has learned and grown from the events leading to the discharge, and the applicant already receiving an Under Honorable Conditions (General) discharge certificate, the Board found no error or injustice which would warrant making a change to the characterization of service received. Additionally, the Board found insufficient evidence or justification presented by the applicant which would warrant granting relief from a re-enlistment bonus debt. For that reason, 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. 5/16/2019 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. AR 635-200 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. c. Paragraph 14-12b, in effect at the time, states members are subject to separation under this provision for a pattern of misconduct. A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found, in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army. 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. 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, 1. 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 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. //NOTHING FOLLOWS//