BOARD DATE: 24 August 2020 DOCKET NUMBER: AR20180004450 APPLICANT REQUESTS: an upgrade of his discharge general under honorable conditions to honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 September 1999 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 prior to discharge, his grandmother who raised him passed away. He was 19 years old at the time and reacted to her death in a negative way. He began a period of self-destructive behavior. His behavior eventually led to two Article 15s and the General/Under Honorable Discharge. He would like his character of discharge upgraded to reflect what was honorable service, prior to his grandmother passing away. 3. A review of the applicant’s service record shows on: a. 25 August 1997, he enlisted in the U. S. Army Reserve Delayed Entry Program in the rank of Private (PVT)/E-1. b. 16 September 1997, he was ordered to active duty in the Regular Army in the same rank for a period of 4 years and 00 weeks. c. 16 March 1998 he was promoted to PV2/ E-2. d. 15 August 1998, he was apprehended by the Fort Stewart military police. At or about 0100, he was administered a breathalyzer test by the police with results indicating 0.17 grams of alcohol per 210 liters of breath. He was cited with Driving Under the Influence, drinking while on Initial Ready Company and failure to exercise due care. He was given a Memorandum of Reprimand for his misconduct. The reprimand was administrative in nature and was not imposed as punishment under Article 15, Uniform Code of Military Justice (UCMJ). The applicant acknowledged the reprimand and elected not to provide a statement. d. 9 September 1998, his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)) was initiated against the applicant for disobeying a lawful order by consuming an alcoholic beverage, at a time when he was under the age of 21 and operating a vehicle while drunk. He was reduced to the grade of E-1, forfeiture of $300.00 per month for 2 months, extra duty for 45 days, and restriction to the limits of the battalion area, dining/medical facility and place of worship for 45 days. e. 9 November 1998, a DA Form 4187 (Personnel Action), was signed which reduced the applicant to E-1 effective 28 October 1998 after receiving an Article 15. f. 1 April 1999, the applicant was administered a unit urinalysis and tested positive for cocaine. g. 27 April 1999, the applicant was informed that Criminal Investigation Division (CID) Investigator wanted to question him about the offense of suspected wrongful possession and use of cocaine. The applicant did not want to answer any questions and requested a lawyer. h. 11 May 1999, a CID Report of Investigation detailed the final investigation into his wrongful use of cocaine. i. 9 June 1999, DA Form 4833 (Commander’s Report Disciplinary or Administrative Action) states the applicant’s offense of wrongful use of cocaine from 29 March to 1 April 1999. Action taken was Nonjudicial (Article 15). He was fined $479 for 1 month, reduced from E-2 to E-1, extra duty for 45 days and restricted for 45 days. j. 23 June 1999, the applicant was given a mental status evaluation. The medical provider noted his commander was considering involuntary discharge under the provisions of Army Regulation 635-200, paragraph 14-12. The evaluation was based on clinical interview and medical records review. Upon evaluation, the Division Psychiatrist noted that the applicant was mentally responsible and was psychiatrically cleared for any administrative action deemed appropriate by command. k. 20 July 1999, his commander informed him of his proposed recommendation for separation under provisions of Army Regulation 635-200, paragraph 14-12c for Commission of a Serious Offense for his cocaine use and disobeying a lawful order and recommendation he receive a General Under Honorable Conditions Discharge. l. 20 July 1999, the applicant acknowledged receipt of the Memorandum of Notification and separation packet. He was advised by counsel, and he did not submit statements in his behalf. He understood that he may encounter substantial prejudice in civilian life if a general under honorable conditions discharge is issued to him and how he may be ineligible for many or all benefits administered by the Veterans Administration (VA). He was afforded the opportunity and therefore consulted with legal counsel who fully advised him of this matter. The applicant personally made the choices indicated in the statement. m. 31 August 1999, consistent with the chain of command recommendations, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense and directed characterization of his service as general under honorable conditions. 4. The applicant provides his DD Form 214 that shows: * On 10 September 1999, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c * His narrative reason for separation was Misconduct * He completed 1 years, 11 months, and 25 days of active service * He was authorized award of the Army Achievement Medal, Army Service Ribbon, Sharpshooter Badge (Grenade) and Marksman Badge (Rifle) 5. See REFERENCES below. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. 1. In applying standards of liberal consideration, the Board considered the applicant’s statement that his misconduct was caused by his reaction to his grandmother’s death. However, the applicant made no indication of this during his separation proceedings and the applicant’s mental status evaluation reflected that he was mentally responsible and psychiatrically cleared for any administrative action deemed appropriate by the command. 2. In applying standards of clemency, the Board found limited evidence of creditable service (the applicant did not complete his enlistment), wartime service, remorse, valorous awards, or post-service honorable conduct that might have mitigated the discharge characterization that resulted from his serious misconduct. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. It states: a. an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. 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. c. Chapter 14 establishes 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. Before taking action against a Soldier because of minor disciplinary infractions or a pattern of misconduct, Soldiers must have received adequate counseling and rehabilitation. 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. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM. First-time offenders below the grade of sergeant, or with less 3 years of total military service, Active and Reserve) may be processed for separation as appropriate. First–time drug offenders who are soldiers in the grade of sergeant and above, and all soldiers with 3 years or more of total military service, Active and Reserve, will be processed for separation upon discovery of a drug offense. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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) AR20180004450 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1