ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 September 20190 DOCKET NUMBER: AR20170003035 APPLICANT REQUESTS: a reconsideration to his previous request to upgrade his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressional Letters 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 AR20090019792 on 1 June 2010. 2. The applicant states that he served over 180 days completing infantry advanced individual training and airborne school. He says that at the time of his discharge, it was for misconduct. He states that he has since corrected his conduct and is working as a teacher, teaching 1st grade through 10th grade students and has since graduating college in 2013. He says that an upgrade would allow for him to be a better American citizen. 3. The applicant provides a Congressional letter, dated 25 April 2019, which shows the applicant sent his congressman a letter requesting information about his claim. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 January 1997. b. He served overseas in Alaska for 2 years, 7 months, and 15 days. c. On 31 March 1999, the applicant accepted non-judicial punishment, under the provisions of Article 15, for failing to go to his appointed place of duty at the time prescribed and for twice failing to obey lawful orders given to him by a superior noncommissioned officer (NCO). d. On 15 December 1999, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c (Patterns of Misconduct), based on numerous acts of misconduct that included the following: * Soliciting a prostitute * Failing to report * Disobeying lawful order * Lack of control over equipment * Robbery in the first degree * Resisting arrest e. The applicant acknowledged receipt of the letter of notification of the commander’s intent to separate him under the provisions of AR 635-200, Chapter 14-12c. A record of the applicant’s legal consultation is not available for the Board to review. f. Subsequent to the applicant's acknowledgement, on 17 March 2000, the immediate commander formally initiated separation action against the applicant under the provisions of AR 635-200, Chapter 14, separation for misconduct, patterns of misconduct. g. The chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under other than honorable conditions. He requested that the counseling and rehabilitative requirements be waived. h. Consistent with the chain of command's recommendation, the separation authority approved his discharge under the provisions of AR 635-200, Chapter 14-12b and c, and directed the issuance of an under other than honorable conditions discharge for patters of misconduct and serious misconduct. i. The applicant was discharged on 8 May 2000. His DD Form 214 shows he was discharged from active duty under the provisions of AR 635-200, Chapter 14-12b and c with under other than honorable conditions characterization of service. His DD Form 214 shows that he completed a total of 3 years, 3 months and 26 days of creditable active military service with no lost time. 5. By regulation, (AR 635-200) action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. 6. The Board should 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, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the pattern of misconduct which included offenses of a criminal nature, the Board agreed that the applicant's discharge characterization was warranted as a result of the 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 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. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 2. AR 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. 3-7a (Honorable) states an honorable discharge is a separation with honor. 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. 3-7b (General) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member 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 member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 14 (Patterns of Misconduct) of this regulation establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a pattern ,of misconduct, commission-of a serious offense, conviction by civil authorities,' desertion, and absence without-leave. Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history). d. Paragraph 14-12c (Pattern of Misconduct) says that a pattern of misconduct consisting of discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003035 3 1