ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 September 2019 DOCKET NUMBER: AR20170017314 APPLICANT REQUESTS: * an upgrade of his general under honorable conditions discharge * the medals and awards that he received while in basic training be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) * Block 14 (Military Education) corrected from “none” to “Advanced Individual Training (AIT)” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center 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. The applicant states, in effect, a. In 2008, he wanted to reenter the military; however, he made some mistakes and got in trouble with the law, so he could not receive a waiver, which would allow him to return to service. b. In addition, he received medals and awards during Basic Training, but they are not reflected on his DD Form 214. He graduated from Advanced Individual Training (AIT) on 11 September 2001, but his DD Form 214 reflects “none” in block 14 (Military Education). Therefore, he would like his DD Form 214 corrected, so he may receive benefits and credit. c. He realizes that he was young and stupid at the time of his discharge, but he has since cleaned up his life and he has no charges since his discharge (sic). He is a new person and is a proud American citizen, who wishes to receive benefits for his military duty. 3. The applicant provides a copy of a letter from the National Personnel Records Check, St Louis, Missouri, that acknowledges his contact with the center. 4. A review of the applicant’s service record shows: a. He enlisted in the regular Army on 22 February 2001. b. He accepted nonjudicial punishment (NJP) on: * 14 August 2001, for going from his appointed place of duty, without authority, on 13 July 2001 * 25 October 2001, during his separation process; however, the continuation page that states the misconduct was not found in his service records c. On 3 October 2001, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. d. The applicant acknowledged receipt of the commander's intent to separate him. On 9 October 2001, he consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded e. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to a pattern of misconduct, in accordance with AR 635-200, chapter 14-12b. His chain of command recommended approval. f. It is unclear the exact date when the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12b, patterns of misconduct, with his service characterized as general under honorable conditions. The applicant was discharged accordingly on 8 November 2001. g. His DD Form 214 shows he was discharged on 8 November 2001, under the provisions of AR 635-200, Chapter 14-12b, patterns of misconduct, with a characterization of service of general under honorable conditions. He completed 8 months and 17 days of net active service. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 6. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), states action will be taken to separate a member for a pattern of misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. AR 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty). 8. The Board should 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, the Board found some relief was warranted. The applicant’s contentions were carefully considered. He separated during a period in which the National Defense Service Medal, and the Global War on Terrorism Service Medal was authorized for members; however, the medals are not reflected on his DD Form 214. His record is absent any evidence that shows he completed AIT and was awarded an MOS. In reference to the request for a discharge upgrade, 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 short period of honorable serve completed prior to a pattern of misconduct 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the National Defense Service Medal and the Global War on Terrorism Service Medal to his DD Form 214. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge and adding military education. 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. AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a 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 states 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. Chapter 14, of the version in effect at the time, established policy and prescribed 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. It provided that 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 could direct an honorable discharge if merited by the Soldier's overall record. 3. AR 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. a. Paragraph 2-4h (13) (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) states, “each entry will be verified by the Soldier’s records.” b. Paragraph 2-4h(14) (Military Education) states, from the Enlisted Record Brief (ERB)/Officer Record Brief (ORB) list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214. Include title, length in weeks, and year completed. 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) AR20170017314 6 1