ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20170016582 APPLICANT REQUESTS: an upgrade of his under honorable conditions, general discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (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: a. After graduating from the advanced individual training he was stationed in Okinawa, Japan and his family was back in the United States. He seriously felt as if his job as a Soldier came first, but at the same time he was a married man who had joined the military to live the family life. So after three to four months of being in Japan, he noticed changes in his marriage. The time away from his family caused him to become very stressed and bitter, so he started losing sight of the things that were right. b. Furthermore, to take away the stress he was drinking alcohol and after three months had passed and things began to get even worse between him and his spouse. At this point, his decision to become a Soldier was questioned and he was at a point in his life where nothing mattered, so he began to act out. Since 2005, he’s been doing the right things and he started a career as a truck driver and goes to church. He regrets the choices he made and he hopes his past brings light to his future. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 April 2001. b. The Military Police Desk Blotter shows he was cited for drunken driving, drunk and disorderly conduct, and provoking speech/gestures on 11 January 2003, while assigned to the 405th Signal Company, Fort Buckner, Japan. c. He accepted nonjudicial punishment: * 24 January 2003 for physically controlling a vehicle, a passenger car, while his alcohol concentration in his blood was 0.183 grams of alcohol per 100 milliliters of blood. His punishment in part was reduction to E-1 * 15 July 2003, as a result of wrongful previous overindulgence in intoxicating liquor incapacitated for the proper performance of his duties * 16 August 2004, unlawfully strike an Airman on the forehead with his fist. His punishment in part was reduction to E-1, (suspended until 12 February 2005) * 22 October 2004, the suspension of the punishment of reduction to E-1 and forfeiture of $596 per months for two months imposed on 16 August 2004 was vacated and executed. He failed to go at the time prescribed to his appointed place of duty on 1 September 2004 d. The 9th Theater Support Command, Japan, administered by memorandum an Administrative Reprimand to the applicant on 25 February 2003 for attempting to enter New Mexico gate on Camp Foster, Okinawa Japan, while driving intoxicated. He was administered a field sobriety test, and failed. e. He was counseled on various offenses for failure to report from 15 June 2003 to 1 September 2003. f. The incident report, dated 1 August 2004, shows that the applicant was cited for assault to an Airman at the Banyan Tree Club, Kadena Air Base, Okinawa, Japan. g. On 16 March 2005, the applicant’s immediate commander notified him of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 14 for the commission of a serious offense driving under the influence, assault, and wrongfully previous overindulgence. He recommend a general under honorable conditions characterization of service. He informed the applicant of his rights. The applicant acknowledged receipt of the notification of the separation action. h. On 8 April 2005, the company commander recommended the applicant for discharge under the provisions of AR 635-200, Chapter 14, section III, paragraph 14-12c for nonjudical punishments. i. On 15 April 2005, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * the right to submit statements on his own behalf, he elected not submit statements * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge j. On 18 April 2005, the intermediate commander recommended the applicant be separated under the provisions of AR 635-200, Chapter 14, section III, paragraph 14-12c, for commission of a serious offense and he recommended his service be characterized as honorable. k. On 22 April 2005, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 14, paragraph 14-12c for the commission of a serious offense. However, he directed he be issued a General Discharge Certificate. l. He was discharged from active duty on 17 May 2005 with a general, under honorable conditions (general) characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 1 month and 5 days of net active service. He had no lost time. 4. The applicant applied to the Army Discharge Review Board (ADRB) and by letter on 18 January 2008, the ADRB informed him that his request to change his character and or reason of discharge was denied, it was determined that he was properly and equitably discharged. 5. By regulation, members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. Paragraph 3-7b states that 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. 6. By regulation 635-5-1 (Personnel Separations-Separation Program Designators), stating members are subject to, separation code JKQ is appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 7. In reaching its determination, the Board can consider the applicants 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 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. He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) applies to all enlisted Soldiers serving on active duty in the Active Army, including United States Army Reserve Soldiers serving on extended active duty. It also applies to Army National Guard of the United States and United States Army Reserve Soldiers serving on active duty under Title 10 of the United States Code, which includes active duty for training, full-time active duty in the active guard reserve program, active duty for special work, temporary tours of active duty, and order-to-active-duty for contingency operations. 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 Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 -12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 3. AR 635-5-1 (Personnel Separations-Separation Program Designators), states that the separation program designator (SPD) code is used in statistical accounting to represent the reason for separation. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016582 5 1