ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170008150 APPLICANT REQUESTS: through counsel, an upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 Electronic (Application for Correction of Military Record) * Attorney Representation Letter 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. Counsel states that the specific cause of the error and unjust in the applicant's military records will be detailed in a supplemental application with supporting documents and a brief to follow. The applicant has only recently discovered the Hagel Memorandum of 3 September 2014, which is applicable to his discharge and which was issued after his discharge. Counsel states she will prepare a full brief and supporting documents to support the abbreviated application. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 21 July 2005. b. He served in Iraq from 7 February 2007 to 11 April 2008 and from 27 August 2009 to 6 July 2010. c. On 1 November 2011, he accepted nonjudicial punishment for being found drunk on duty on two occasions. His punishment consisted of: a. * reduction to specialist/E-4 * forfeiture of $1162.00 pay per month for 2 months (suspended) * extra duty and restriction d. On 10 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12(c), Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), by reason of misconduct - commission of a serious offense for being drunk on duty on diverse occasions. The applicant acknowledged receipt of notification of separation on the same date. e. On 16 November 2011, he consulted with legal counsel and was advised of his rights. He submitted a request for conditional waiver and waived consideration of his case by an administrative board contingent upon receiving a characterization of service no less favorable than a general, under honorable conditions discharge. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. f. On 20 November 2011, the unit commander recommended separation under AR 635-200, chapter 14, paragraph 14-12c for commission of a serious offense. He recommended his service to be characterized as general, under honorable conditions and to be separated from the Army prior to the expiration of his current term of service. The intermediate commanders recommended approval of the separation with a general, under honorable conditions discharge. g. On 15 December 2011, the separation authority approved the applicant's conditional waiver and directed that he be discharged from both active and Reserve components of the Army prior to the expiration of his current term of service. His service was characterized as a general, under honorable conditions. h. On 17 January 2012, the applicant was discharged under the provisions of AR 635-200, chapter 14-12c by reason of misconduct (serious offense). The DD Form 214 shows he completed 6 years, 5 months, and 17 days of active service. It also shows he was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star (2nd Award) * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Combat Action Badge * * Air Assault Badge * Driver and Mechanic Badge (Mechanic) 5. The applicant applied to the Army Discharge Review Board (ADRB) and on 9 April 2014, the ADRB informed the applicant that after careful consideration, the ADRB determined he was properly and equitably discharged. Accordingly, his request to change the characterization of service and reason for separation was denied. 6. By regulation, action may be taken to separate Soldiers for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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. 7. 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 that relief was not warranted. Based upon a review of the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence to show an error or injustice which would warrant changing the characterization of service. The Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 845 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 Army Board for Correction of Military Records (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), in effect at the time, prescribed the policies, standards, and procedures to ensure readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a (Honorable discharge) states 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 (General discharge) 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities, desertion, and absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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. 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 1. 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.