ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20170005565 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (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, he was not given time to recover from his addiction and was not given the proper assistance in order to get better. He was going through a rough time in his personal life, and his chain of command did not make necessary attempts to help. 3. A review of the applicant’s service record shows: a. He enlisted on 6 June 2005 in the United States Army Reserve (USAR). b. On 28 July 2006, he received an administrative reprimand under the provisions of Army Regulation (AR) 600-37 (Unfavorable Information) for one specification of operating a vehicle under the influence of alcohol. He acknowledge receipt on 2 August 2006, and stated that he acknowledges his mistakes, and have learned his lesson. He states the time he learned the Army values, and elaborates on integrity, while stating he will not make the same mistakes twice. He ends his statement stating that he wants to lead Soldiers and will seek help upon his redeployment. c. On 26 September 2006, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of operating a vehicle under the influence of alcohol. His punishment consisted, in part, of reduction to private/E-1 (suspended). d. His suspension was vacated after he failed to be at his appointed place of duty on 26 January 2007. e. On 7 March 2007, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), based on his driving under the influence incident and his incident of drunk and disorderly conduct. f. On 7 March 2007, the applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14. He acknowledged receipt of the letter of notification. g. Subsequent to the applicant's acknowledgement on 7 March 2007, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, commission of a serious offense. h. He consulted with legal counsel on 9 March 2007 and he acknowledged: * he has been advised of the basis for the separation and its effects * he requested representation by counsel * he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge i. On 9 March 2007, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under honorable conditions. j. On 13 March 2007, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for commission of a serious offense and ordered his service be characterized as under honorable conditions. k. On 15 March 2007, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general under honorable conditions characterization of service for misconduct (serious offense). He completed 1 year, 8 months, and 25 days of active duty service. l. At some point after separation from active duty, he enlisted in the USAR after his discharge, but a DD Form 4 is not available in his records for review for the initial enlistment. m. He entered active duty on 5 October 2010 and was honorably released from active duty (REFRAD) on 5 November 2011 under the provisions of AR 635-200, Chapter 4 (Completion of Required Active Service). He had 1 year, 1 month and 1 day of active service. n. He reenlisted on 8 April 2014 in the USAR. He served in Iraq from 27 November 2010 to 17 September 2011. o. He entered active duty on 2 October 2015 and was REFRAD on 31 May 2016 under the provisions of AR 635-200, Chapter 4. He had 7 months and 29 days of active service. p. He entered active duty on 2 June 2016 and was honorably REFRAD on 31 May 2017 under the provisions of AR 635-200, Chapter 4 for completion of required active service. He had 4 years, 5 months and 25 days of total active service. 4. On 15 May 2009, the applicant was notified that his application with the Army Discharge Review Board (ADRB) was denied and the Board determined that he was properly and equitably discharged. 5. By regulation, separations under the provisions of AR 635-200, chapter 14 provides 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. 6. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to multiple DUI offenses, as well as a lack of post-service character evidence submitted by the applicant showing he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 (AR) 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), 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. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 14, 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. 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. 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) AR20170005565 2 1