ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170019455 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge. 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 his discharge was inequitable because it was based on one isolated incident in 66 months of service with no other adverse action. He served nearly 6 years in the Army and he is very proud to be a Veteran and of what he and his unit had accomplished during both overseas deployments. He was disappointed in his adverse action that caused his discharge and he does not want to be embarrassed of his service anymore. He deserves a discharge upgrade. 3. A review of his service records shows: a. He enlisted in the Regular Army on 16 January 2007. b. He served in Iraq from 9 March 2008 to 14 March 2009 and in Afghanistan from 24 July 2010 to 2 July 2011. c. His service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army with the exception of DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period of 1 June 2011 to 30 November 2011 where his rater wrote under Part IV (Values/NCO responsibilities) under competence block that the applicant used poor judgment by operating a vehicle while under the influence of alcohol and rated him marginal. His command referred him to the Alcohol Substance Abuse Program to prevent future lapse in judgment. However, the record contains a properly constituted DD Form 214, which was authenticated by the applicant's signature. The document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. d. On 9 August 2012, the applicant was discharged under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c by reason of misconduct (serious offense) with an under honorable conditions (general) characterization of service. e. His DD Form 214 shows he completed 5 years, 6 months, and 24 days of active service. It show she had continuous honorable service from 20070116-20111019 and he was awarded and/or authorized: * Iraq Campaign Medal with Two Campaign Stars * Army Commendation Medal (2nd Award) * North Atlantic Treaty Organization Medal * Valorous Unit Award * Army Good Conduct Medal * National Defense Service Medal * Afghanistan Campaign Medal with Two Campaign Stars * Global War on Terrorism Service Medal * Army Overseas Service Ribbon (2nd Award) * Combat Action Badge * Driver and Mechanic Badge with Driver-Wheeled Vehicle(s) Clasp 4. On 30 January 2015, the Army Discharge Review Board (ADRB) informed the applicant that after careful consideration, the ADRB determined he was properly and equitably discharged. Accordingly, his request to change the characterization of service and reason for separation was denied. 5. By regulation (AR 635-200) action may be taken to separate Soldiers for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. The Board found there was insufficient evidence presented by the applicant to show there was an injustice or error which would warrant a correction. Additionally, in the Board’s opinion, the applicant could show that he has character evidence to present to show that he has learned or grown from the events that resulted in the discharge, but the applicant failed to provide such evidence for consideration. For that reason, the Board recommended denying the applicant request for relief. 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 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribed the policies, standards, and procedures to ensure readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a (Honorable Discharge) 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 (General Discharge) states 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 establishes 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. 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 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. ABCMR Record of Proceedings (cont) AR20170019455 4 1