BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180007394 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 6 April 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 March 2002 * Third Party Letter of Support, dated 13 February 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b). However, the Army Board for Correction of Military Records (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 he served under an unfit first sergeant. He was court-martialed and sent to jail for not wanting to run in below zero temperatures. At the time, his legs were almost frost bitten but she did not care. He was one of many whose career was destroyed by her. He had planned on staying in for 30 years. The UOTHC has prevented him from getting jobs and advancing in his current job as a furniture store manager. He is a good person and he is ready to move on from this. 3. The applicant submitted a third party letter of support written by an individual who served with him at Fort Drum, NY. The author states he served under the same first sergeant and also experienced her wrath. She was a bully to male Soldiers and looked for opportunities to embarrass them. He recalls her sending a Soldier to jail for refusing to carry the guide on due to a shoulder injury. He also recalls the day the applicant did not want to go outside because of the cold weather. He states the first sergeant made it a point to ruin Soldiers' careers by forcing them to be discharged UOTHC. These Soldiers were young, unsure of their resources to prevent harassment, and they were easily taken advantage of. He hopes the Board can assist the applicant so he can move on with his life. 4. The applicant enlisted in the Regular Army on 25 July 2000. Following the completion of his initial entry training, he was assigned to Fort Drum, NY. 5. The applicant accepted non-judicial punishment (NJP) on 23 May 2001, under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for wrongful use of his government credit card on multiple occasions, from on or about 16 March 2001 through on or about 7 April 2001. 6. Before a summary court-martial on or about 3 December 2001, at Fort Drum, NY, the applicant was found guilty of the following offenses: * being disrespectful in language toward a noncommissioned officer, who was in the execution of his office (two specifications), on or about 17 August 2001 and 12 October 2001 * treating with contempt a noncommissioned officer, who was in the execution of his office, on or about 12 October 2001 * willfully disobeying a lawful order, on or about 12 October 2001 * failing to obey a lawful general regulation by wrongfully consuming alcohol under the legal age of 21, on or about 17 August 2001 * being drunk and disorderly, on or about 17 August 2001 * wrongfully communicating a threat, on or about 17 August 2001 The court sentenced him to reduction in rank/grade to private/E-1, forfeiture of $695 pay per month for one month, and confinement for 30 days. 7. The applicant was notified on 6 February 2002 of his immediate commander's intent to initiate separation actions against him, under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, by reason of pattern of misconduct. The applicant acknowledged receipt of the proposed separation action on 6 February 2002. 8. The applicant submitted a response to the separation notification on 6 February 2002. He requested a conditional waiver and requested a general discharge, under honorable conditions. He stated he joined the military to gain life experience, go to college, and earn the Montgomery GI Bill. He acknowledged he made some mistakes; however, he performed all of his duties to standard, excelled in physical training, obtained a driver's license for multiple military vehicles and attended combat life saver training. He was selected to perform funeral detail. The NCOs utilized their government travel card for expenses. He did as well and received an Article 15. He was depressed about the extra duty he received and drank under the age of 21, for which he received a summary court-martial. He learned his lesson and will not make these mistakes again. He is a better person because of them. He will focus on his performance and assist the Soldiers around him. 9. The applicant consulted with counsel on 14 February 2002 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a UOTHC discharge was issued to him. He waived consideration of his case by an administrative separation board and withdrew his request for a conditional waiver. 10. The applicant's immediate commander formally recommended the applicant's separation from service on or about 19 February 2002, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct. 11. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 4 March 2002, by reason of misconduct, and directed that he be issued a DD Form 794A (UOTHC Discharge Certificate). 12. The applicant was discharged on 8 March 2002. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with his service characterized as UOTHC. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the results of a court-martial, the reason for his separation and his statement in response, and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides 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 members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20180007394 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007394 5 ABCMR Record of Proceedings (cont) AR20180007394 4