IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20170001564 APPLICANT REQUESTS: His under honorable conditions (general) 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 23 January 2017 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 23 January 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 November 2011 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 (ASBCMR) 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 was late a few times but the days he was late he had gotten a doctor's statement to explain why he didn't show up on time. He turned it in and it clearly showed where he was at the time of duty. The first sergeant (1SG) didn't accept it because he wasn't in formation and the 1SG through he didn't let his squad leader know where he was at; however, he did inform his team leader. Once he turned in the note, the 1SG told him that since he didn't let his squad leader know, it was invalid and he would still get the punishment. He told him his team leader was informed about his whereabouts but since he failed to report them, he was going to be held accountable for it. When he confronted his team leader, he told him he forgot to pass the message on and he would try and help him to get out of the situation but when he talked to the 1SG, he was told that it was too late to report his whereabouts. The applicant states he is trying to go back to school and is having a hard time paying for it. 3. The applicant enlisted in the Regular Army on 12 March 2008. 4. The applicant received several adverse counseling statements between 16 July 2010 and 20 August 2011, for diverse reasons including but not limited to, negligence and inability to make formations; being late for formations; oversleeping resulting in failure to make guard duty; forgery, and insubordinate conduct towards a noncommissioned officer (NCO). 5. The applicant received a Letter of Reprimand on 22 October 2010, for driving under the influence of alcohol. 6. The applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 17 February 2011, for failure to go to his place of duty, on or about 16 July 2010 * on 30 March 2011, for using disrespectful language toward an NCO * on 18 October 2011, for the theft of $95.31 from a fellow Soldier, on or about 27 June 2011; creating a false physical profile entry with intent to defraud, on or about 27 June 2011; failure to go to his place of duty (physical fitness formation), on or about 3 August 2011; and for failure to go to his place of duty (guard duty), on or about 10 September 2011 7. The applicant's unit commander notified the applicant on 24 October 2011 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, due to a pattern of misconduct. 8. The applicant consulted with legal counsel on 26 October 2011. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived this option. 9. The applicant's unit commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b. The separation authority approved the applicant's request for discharge on 2 November 2011. 10. The applicant was discharged on 16 November 2011, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. The DD Form 214 he was issued shows his service was characterized as under honorable conditions (general). His DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he had 3 years, 8 months, and 5 days of years of active duty service * he had no lost time * he did not receive any personal awards or decorations 11. The Army Discharge Review Board denied the applicant's request for an upgrade on 22 October 2012 12. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, a letter of reprimand, the contents of the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12b provides that a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or 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, the civil law, and time-honored customs and traditions of the Army. An under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001564 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170001564 5 ABCMR Record of Proceedings (cont) AR20170001564 4