BOARD DATE: 24 January 2020 DOCKET NUMBER: AR20180011448 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 19 July 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 November 2011 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, in effect, his supervisors wanted him out of the military and they were willing to do anything to make it happen. He wanted to get out of Texas and the only way was to get out of the military. He was reluctant to get out of the military and wanted to stay in the Army but was tired of the discrimination due to his back injury. He accepted the general discharge to get away from the discrimination; he is deserving of an honorable discharge. 3. The applicant enlisted in the Regular Army on 1 August 2006. 4. The applicant was formally counseled on eight separate occasions between 9 November 2010 and 1 June 2011, for reasons including but not limited to: * promotion denial, being flagged for being over weight * disobeying a direct order * failing to report for physical training (PT) * pending Uniform Code of Military Justice (UMCJ) actions * disrespecting a noncommissioned officer (NCO), missing movement while in field 5. The applicant's record contains a letter of record, dated 1 June 2011, which details the event oriented counseling he received on 31 May 2011. This document shows he was insubordinate to his NCO leader and was counseled appropriately. 6. The applicant accepted non-judicial punishment on 10 June 2011, under the provisions of Article 15 of the UCMJ, for: * failing to go at the time prescribed to his appointed place of duty, on or about 23 February 2011 and 24 February 2011 * being disrespectful to an NCO on two separate occasions, on or about 25 March 2011 7. The applicant was formally counseled on four separate occasions between 21 July 2011 and 12 October 2011, for reasons including but not limited to: * failing to be at place of duty at appointed place and time * removing himself from a detail he was assigned to * making false statements to command * notification of recommendation for administrative separation * disobeying a lawful order from an NCO 8. The applicant underwent a mental status evaluation on 21 October 2011. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had no obvious impairments to his cognitive behavior, behavior was cooperative, normal perception, unlikely to be impulsive and was not a dangerous threat. The applicant also underwent screening where he was negative for having post-traumatic stress disorder and mild traumatic brain injury. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings, can determine the difference between right and wrong and he was cleared for any administrative action deemed appropriate by his Command. 9. The applicant's commander notified the applicant on 7 November 2011 that he had initiated actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. 10. The applicant consulted with counsel on 7 November 2011 and acknowledged receipt of the notification memorandum. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he was issued an under honorable conditions (general) discharge. He acknowledged his understanding and declined to provide a statement on his own behalf. He waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to submit statements in his own behalf. 11. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. The separation authority approved the recommended discharge on or about 10 November 2011 and directed that the applicant be issued a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 29 November 2011 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His DD Form 214 confirms his service was characterized as under honorable conditions (general). His DD Form 214 further shows he was awarded or authorized the Army Achievement Medal, Army Good Conduct Medal, Global War on Terrorism Service Medal and the Korean Defense Service Medal. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 14 September 2012, determined he was properly discharged, and denied his request for relief. 14. 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, 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 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 sets 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. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. 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) AR20180011448 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180011448 5 ABCMR Record of Proceedings (cont) AR20180011448 4