ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170010090 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 online (Application for the Review of Discharge from the Armed Forces of the United States) 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 has been discharged from the Army for 15 years and has not been in any trouble. He has held down a steady job since being discharged. He does not have any kind of record with law enforcement. He has grown to know that in this life “we live we have to make choice and sometimes it’s not good choices but you have to turn bad choices into good choices.” He has grown a lot since he transitioned out of the Army. He has become a proud father of two boys and he knows the importance of doing the right thing but it’s not always easy and the way you carry yourself will determine your future. He is at a point in his life that he wants to have a better future for his family. He teaches his boys to respect others, respect themselves, and carry themselves in a respectful way so that others would respect them. It took him some time and he had to change and he had to change some things he was doing to get to this point in his life. He tries to teach them work ethics and he has been on his current job for 6 years without a write up or disciplinary actions. He desires an honorable discharge because he has learned the value of owning up to his mistakes and trying to provide a better future for his family. 3. A review of his service record show the following: a. He enlisted in the Regular Army (RA) on 9 November 2000. b. On 12 February 2002, he was convicted by a summary court-martial of one specification of being absent without leave on 24 January 2002 and one specification of failure to be at his appointed place of duty on 24 January 2002. The court sentenced him to 20 days confinement. The convening authority approved the sentence. c. On 9 April 2002, his immediate commander notified him of his intent to initiate separation under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12b for pattern of misconduct. The applicant acknowledged notification on 9 April 2002. The reason for the commander’s actions are due to frequent counseling for various infractions between 23 October 2001 and 5 March 2002, including: * failing to report on multiple occasions * failing to be at his appointed place of duty * failing to report to extra duty * disobeying orders * positive urinalysis test for illegal drugs * two Article 15s (one for disobeying orders and one for illegal drugs) d. On 16 April 2002, he was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights. He understood if he had less than six years total of active and reserve military service at the time of separation and being considered for separation for misconduct under AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board. The applicant requested: * consideration of his case by an administrative board * personal appearance before the administrative separation board * did not submit statements on his behalf * consulting counsel representation e. On 16 and 18 April 2002, the applicant’s immediate commander and intermediate commanders recommended separation under the provisions of AR 635-200, chapter 14-12b for pattern of misconduct, waiver of rehabilitative requirement, and the applicant's service be characterized as under other than honorable conditions. f. On 30 April 2002, the separation board was empowered to adjudicate an other than honorable discharge, to consider whether the applicant should be separated before expiration of this current term under the provisions of AR 635-200, chapter 14-12b for pattern of misconduct. g. On 9 May 2002, the applicant was again advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights. He understood if he had less than six years total of active and reserve military service at the time of separation and am being considered for separation for misconduct under AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board. The applicant: * waived of consideration of his case before an administrative separation board * waived of personal appearance before an administrative separation board * elected not to submit no statement on his behalf will be submitted * understood he may encounter substantial prejudice in civilian life if an Other Than Honorable discharge is issued to him * understood that as the result of issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life h. On 15 May 2002, the separation authority approved the unconditional waiver and withdrawal of the referral of his case to an administrative separation board. He further approved the separation under the provisions of AR 635-200, chapter 14-2b for pattern of misconduct and ordered the applicant's service be characterized as under other than honorable conditions. i. He was discharged from active duty on 20 April 2002. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of AR 635-200, chapter 14-12b (block 28-narrative reason) pattern of misconduct and character of service under other than honorable conditions. It also shows that he served on active duty for 1 year, 5 months, and 22 days. He was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * Marksman-Marksmanship Qualification Badge with Rifle Bar (M16) 4. By regulation, AR 635-200 establishes policy and prescribe 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. 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, the Board determined relief is not warranted. The Board carefully considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the relatively short term of service completed prior to a pattern of misconduct, the reason for his separation and whether to clemency was to be applied. The Board found insufficient evidence of in-service mitigating factors and the applicant did not provide post-service character witness statements or evidence of post-service achievements to support his statement and a clemency determination. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based on a preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. 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. 7/9/2019 X CHAIRPERSON 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 635-200 (Personnel Separations-Enlisted Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 of that regulation states members are subject to separation for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. 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.