ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170010925 APPLICANT REQUESTS: * upgrade of his general under honorable conditions discharge to honorable * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Army Achievement Medal APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Second DD Form 149 (Application for Correction of Military Record) * DA Form 638 (Recommendation for Army Achievement Medal) * Army Achievement Medal Certificate * DD Form 214 * Documents from the Department of Veterans Affairs 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 that he was under mental confusion because he joined the military at a young age and his spiritual upbringing conflicted with wartime conditions. He received mental counseling while he was deployed to Bosnia and still receives treatment for Post-Traumatic Stress Disorder (PTSD) to this day. In a second application, he states that he should have received an Army Achievement Medal but there was not enough time to include it on his DD Form 214 before his discharge. 3. The applicant provides: * DA Form 638 and certificate confirming award of the Army Achievement Medal by Permanent Orders Number 152-10, dated 1 June 1998 * Department of Veterans Affairs (VA) documents that give the applicant a service connected disability compensation for PTSD 4. A review of the applicant's records shows: a. On 21 June 1996 he enlisted in the Regular Army. b. He served in Germany from 5 January 1997 to 4 January 1999. He served in Bosnia, but the dates of his service are unknown. c. On 12 April 1997, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for one count of destruction of military property and one counts of disobeying a lawful order. d. On 1 May 1997, he accepted NJP under Article 15 for failure to obey a lawful order by negligently failing to clear his weapon after his guard duty was over. e. On 1 September 1998, he accepted NJP under Article 15 for two counts of failure to go at the time prescribed to his appointed place of duty, one count of making a false official statement, and one count of assault. His punishment consisted of reduction to E-1, forfeiture of pay, and extra duty. f. On 29 September 1998, he accepted NJP under Article 15 for one count of wrongfully using marijuana. g. On 17 February 1998, he accepted NJP under Article 15 for one count of allowing an unlicensed person to operate a motor vehicle without verifying the person had a valid license. h. On 15 October 1998, separation proceedings were initiated for a pattern of misconduct under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12b (pattern of misconduct). His immediate commander recommended a general discharge and cited the specific reasons as a consistent pattern of misconduct which includes failing to follow instructions, making false official statements, failing to go to his appointed place of duty, allowing an unlicensed person to drive his vehicle, failing to clear weapon and leaving weapon unattended, testing positive for a controlled substance, and assault.. i. On 15 October 1998, he consulted with legal counsel. He was advised of the basis for the contemplated action to separate him for misconduct. He declined making a statement on his own behalf. He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him. He also understood that if he received a discharge or character of service which is less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board does not imply that my discharge will be upgraded. j. On 15 October 1998, his immediate commander initiated separation action against him in accordance with paragraph 14-12b of AR 635-200. His intermediate commander recommended approval. k. On 16 October 1998, consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 and directed the issuance of a General Discharge Certificate. l. On 27 October 1998, he was discharged from active duty under the provision of AR 635-200, chapter 14-12b (Misconduct - Pattern of Misconduct). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 year, 4 months, and 7 days of active service, and he was awarded/authorized: * National Defense Service Ribbon * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Armed Forces Service Medal * NATO Medal m. On 29 September 1999, the ADRB considered his petition for an upgrade but found his discharge proper and equitable. The ADRB denied his request for an upgrade. 5. An ARBA Medical Advisory Opinion dated 30 November 2017, which states that a clinical psychologist reviewed the applicant’s claims and found no evidence to support his contention that his misconduct was related to a behavioral health condition. The observation does not negate the applicant's post-service diagnosis; however, the available evidence does not support a change to his discharge characterization. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments and/or a rebuttal. He did not respond. 7. By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12b of AR 635-200 for a pattern of misconduct. A discharge under other than honorable conditions is 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. 8. 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: Admin notes grant for AAM. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, 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 X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s service records shows he is entitled to awards not listed on his DD Form 214. As a result, amend his DD Form 214 to show the Army Achievement Medal. 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 Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) 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 the Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate b. Paragraph 3-7b (General Discharge) 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. c. Paragraph 14-12b, in effect at the time, states members are subject to separation under this provision for a pattern of misconduct. A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) 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, civil law, and time-honored customs and traditions of the Army. A discharge under other than honorable conditions is 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 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) AR20170010925 5 1