ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20170016118 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge). 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 is requesting an upgrade because the current discharge is preventing him from getting employment and education benefits. He can only find minimum wage jobs. He would like to go back to school or take advantage of a vocational program. 3. A review of the applicant’s service record shows: a. Having had prior service in the Regular Army (RA), he enlisted in the RA on 22 November 2005. b. He accepted non-judicial punishment under the provisions of Article 15 on/for: * 3 January 2008, twice willfully disobeying a lawful order and for being disrespectful in deportment toward a chief warrant officer by rolling his eyes and sighing; his punishment consisted of reduction to private E-2, forfeiture of $755 pay per month for one month (suspended) to be automatically remitted if not vacated before 3 July 2008 and extra duty for 45 days * 2 December 2008, DA Form 2627 states that there is a continuation sheet, it is not in the packet for review; his punishment consisted of reduction to private/E-1, forfeiture of $673 pay per month for two months and extra duty for 45 days c. On 12 November 2008, he was given a mental status evaluation. The examiner determined he met the retention standards prescribed in Army Regulation (AR) 40-501 (Standards of Medical Fitness), and there was no psychiatric disease or defect that warranted disposition through medical channels. He was cleared for any administrative actions deemed appropriate by command, such as separation under AR 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations), (i.e. paragraph) 14-12. d. On 14 January 2009, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions chapter 14, paragraph 14-12c of AR 635-200, for commission of a serious offense. The reason for the proposed action was the applicant violated a lawful general regulation by having an unregistered firearm in his privately owned vehicle and numerous minor infractions. The commander recommended that he receive a general under other than honorable conditions discharge. The commander advised the applicant of his right to: * consult with counsel and/or retain civilian counsel at no expense to the government * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board if you have 6 or more years of active and reserve military service at the time of separation * submit statements in his own behalf * waive any of the above rights * submit a conditional waiver of his right to have his case heard before an administrative separation board * undergo a complete medical examination and mental status evaluation IAW AR 40-501 e. On 14 January 2009, he acknowledged receipt of the immediate commander’s decision to recommend him for separation. He also consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf. He acknowledged: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he also acknowledged that as a result 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 * he could expect to encounter substantial prejudice in civilian life * he understood if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his discharge would be upgraded. f. On 14 January 2009, the applicant's immediate commander recommended that the applicant be separated from service prior to his expiration of his term of service, under the provisions of AR 635-200, chapter 14, paragraph 14-12c, commission of a serious offense. He requested that rehabilitation requirements in accordance with (IAW) AR 635-200, paragraph 1-16 be waived and not be transferred to the Individual Ready Reserve (IRR). g. On 14 January 2009, the intermediate commander recommended the applicant be separated from the service with a general under honorable conditions discharge. He recommended that rehabilitation requirements IAW AR 635-200, paragraph 1-16 be waived and not be transferred to the IRR. h. On 14 January 2009, the senior defense counsel requested that the [applicant] remain on active duty as elimination from the Army for the two small infractions for which he received Article 15 's seemed to be unwarranted. (1) The first Article 15 that the [applicant] received, for an alleged incident of disrespect while in Iraq on 18 December 2007 seemed to have been unfairly decided since the officer, CW2 X___, was allowed to behave unprofessionally and abusively towards the [applicant]. The most recent Article 15, for having an unregistered weapon in a vehicle is an all too often an occurrence at Fort Stewart where, as in the [applicant’s] case, the gate guards explain to Soldiers asking that they are allowed to have an unregistered weapon in their vehicle as long as it is in plain view and unloaded. A warning, a corrective training after the Soldier registers the weapon on post would serve any disciplinary interests when the Soldier has relied in good faith on the information they received from a gate guard. (2) [Applicant] deployed to Iraq from January 2006 through March 2007, where he worked as convoy security, was chosen as battalion Soldier of the month twice and worked as the command sergeant major’s gunner during various trips outside the wire. That combat duty, together with the investment made in the training of Soldier's like the [applicant] should not be wasted, since it requires our recruiters to get replacements from a dwindling and often not as qualified pool of volunteers. i. On unknown date, the brigade judge advocate, reviewed the elimination packet and deemed it legally sufficient. j. The separation authority approved the applicant to be separated under the provisions of AR 635-200, Chapter 14, paragraph 12c due to commission of a serious offense. He approved the applicant be discharged with a characterization of service of general under honorable conditions, rehabilitation requirements IAW AR 635-200, paragraph 1-16 were waived and he was not transferred to the IRR. k. The applicant was discharged from active duty on 26 January 2009. He was discharged under the provisions of AR 635-200, paragraph 14-12c. He completed \ 3 years, 2 months, and 5 days of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the Army Achievement Medal and National Defense Service Medal. 4. On 8 April 2009, the applicant requested an upgrade through the Army Discharge Review Board (ADRB). On 14 January 2010, the ADRB determined the applicant was properly and equitably discharged. The request for a change in the character and/or reason of his discharge was denied. 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 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 : : : 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 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, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b. 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. 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. ABCMR Record of Proceedings (cont) AR20170016118 2 1