IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180007592 APPLICANT REQUESTS: The applicant requests to upgrade his general, under honorable conditions discharge to honorable. 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) 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 he came into the military to fulfill an obligation. He committed to and at some point married his high school sweetheart and bought her and his kids to the base with him. At some point she started cheating and was caught with a man in their home and bed. He admits the situation could have been handled differently but his frame of mind was not there at the time. He acted irrational and messed up his career over it. He is asking for the upgrade as a courtesy to himself. Also, based on the fact the military is a place of family values, but he thinks his unit did not show that in his discipline and discharge. He feels he and his wife should have been offered counseling, and if that did not work a separation with his wife being sent to their home state should have occurred. 3. On 23 January 1998, the applicant enlisted in the Regular Army for a period of 3 years. He was 22 years old and completed training requirements. 4. On 11 August 1998, a military police report shows a preliminary investigation revealed the applicant and his wife were involved in a verbal altercation which turned physical when the applicant struck his wife on the leg. The wife then struck the applicant numerous times in the face. The applicant was detained and transported to the military police station where he was read his legal rights which he waived rendering a sworn written statement admitting to the offense. The applicant’s wife was also detained and rendered a sworn written statement admitting to the offense. 5. The applicant’s service record contains general counseling forms that show his chain of command counseled him on multiple occasions for: * failing to be at his appointed place of duty on multiple occasions * missing marriage counseling appointments * verbal disputes with his wife that appeared on the military police blotter report twice within a month * disobeying a lawful order * disrespecting a noncommissioned officer (NCO) * threatening and cursing an NCO * failing to report for extra duty 6. On 15 September 1998, the Garrison Commander highly encouraged the applicant to seek marital/family counseling at The Chaplain’s Family Life Center or Martin Army Community Hospital Social Work Services. He also directed the applicant to call the Community Life Office no later than five working days from receipt of the correspondence to make an appointment, accompanied by his supervisor, to show cause why he should not recommend termination of the applicant’s privilege to live in government quarters. The Garrison Commander told the applicant he would discuss measures he had taken to preclude further incidents of this nature, such as arrangements he had made, or plan to make, with counseling services. 7. On 13 January 1999, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for unlawfully striking his wife with a baby chair bruising her on the head, shoulder, back and right foot on or about 22 October 1998. His punishment consisted of reduction to pay grade E-1; forfeiture of $223.00 pay per month for one month (suspended), to be automatically remitted if not vacated before 13 April 1999; extra duty for 14 days; and restriction to the limits of Kelley Hill for 14 days. 8. On 10 and 11 February 1999, a mental status evaluation and a medical examination cleared the applicant for any administrative separation action deemed appropriate by his chain of command. 9. On 18 February 1999, the applicant’s forfeiture of pay suspension was vacated based on him disrespecting an NCO. 10. On 15 March 1999, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) paragraph 14-12b, for patterns of misconduct. The specific reason is cited as the applicant's misconduct consisting of receiving NJP on 13 January 1999, numerous counseling for failing to report to his appointed place of duty, disrespecting an NCO, disobeying a lawful order, and for verbal altercations and domestic disputes. The commander recommended the issuance of a general discharge, and informed the applicant of his rights. a. The applicant acknowledged receipt of the commander's intent to separate him and elected not to submit statements in his own behalf. He was advised of the basis for his contemplated separation action for misconduct, the type of discharge he could receive and its effect on future enlistments or reenlistments, the possible effects of this discharge, and of the procedures/rights that were available to him. b. Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14- 12b, for misconduct. The legal office reviewed and found the packet to be legally sufficient to support the proposed separation for a pattern of misconduct. c. His intermediate commander recommended approval with the issuance of a General Discharge Certificate. d. The separation authority approved the applicant's discharge and directed he be issued a General Discharge Certificate. He also waived rehabilitation requirements pursuant to AR 635-200, paragraph 1-18(d). 11. On 19 May 1999, the applicant was discharged accordingly. His DD Form 214 shows he was discharged in accordance with AR 635-200, paragraph 14-12b, due to misconduct with a general characterization of service. He completed 1 year, 3 months, and 27 days of active service this period. He was not awarded a personal decoration. 12. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 13. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is 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. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. 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. c. 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. 3. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time of his discharge stated the SPD code of JKA was the appropriate code to assign Soldiers separated under the provisions of AR 635-200, paragraph 14-12b due to misconduct – pattern of misconduct. 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. 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, 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. 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) AR20180007592 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007592 7 ABCMR Record of Proceedings (cont) AR20180007592 5