BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180011745 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160012453 on 18 April 2019. Specifically, he 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 from the Armed Forces of the United States), dated 13 August 2018 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160012453 on 18 April 2019. 2. As a new argument, the applicant states his discharge was inequitable because it was based on one isolated incident in 61 months of service, with no other adverse actions. He would like to continue his service as either a law enforcement officer or as a private military contractor overseas. 3. The applicant enlisted in the Regular Army on 30 June 2009. He served through one reenlistment and attained the rank/grade of specialist (SPC)/E-4. He deployed to Afghanistan in support of Operation Enduring Freedom (OEF), on two occasions, from 27 July 2011 through 27 April 2012 and from 1 October 2013 through 14 April 2014. 4. The applicant accepted nonjudicial punishment (NJP) on 5 December 2013, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses: * for willfully disobeying a lawful order from a noncommissioned officer (NCO), on or about 20 August 2013 * for wrongfully using a Government Travel Charge Card to pay for personal expenses not related to travel, and for cash withdrawals during non-travel periods between on or about 25 July 2013 and on or about 21 August 2013 * for failing to pay undisputed charges in a timely manner, on or about 1 October 2013 5. The applicant's commander notified the applicant on 8 July 2014 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct - commission of a serious offense. The commander cited the applicant's disobeying a lawful order and violating a lawful general order by wrongfully using a Government Travel Card on three occasions. He informed him that he would recommend he receive a general, under honorable condition discharge. The applicant acknowledged receipt of the notification memorandum the same day. 6. The applicant consulted with counsel on 9 July 2014 and was advised of the basis for separation actions. He was advised that he was not entitled to have his case considered by a board of officers or a personal appearance before a board of officers. He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He elected not to submit statements in his own behalf. 7. The applicant's commander formally recommended the applicant's separation from service on 24 July 2014, prior to the expiration of his current term of service, under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense. The commander indicated his request was based on the aforementioned reasons. The commander also stated: the [applicant] failed to overcome the bar to reenlistment, which clearly outlined ways for him to stay in the military, and he did not possess the potential for useful service under conditions of full mobilization. His intermediate commander recommended approval the same day. 8. Consistent with the chain of command recommendations, the separation authority approved the applicant's separation prior to his expiration of current term of service, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct – commission of a serious offense. He further stated rehabilitative transfer requirements were waived, directed the applicant receive an under honorable conditions discharge, and further directed that he not be transferred to the Individual Ready Reserve (IRR). 9. The applicant was discharged on 26 August 2014, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of "Misconduct – Serious Offense". His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions (general). His DD Form 214 shows he was awarded or authorized the Army Commendation Medal, Army Achievement Medal (2nd Award), Army Good Conduct Medal, Afghanistan Campaign Medal with Campaign Star, Meritorious Unit Commendation, and Combat Action Badge, in addition to other service medals. 10. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB considered his petition and denied his request on 16 June 2016. 11. The applicant applied to the ABCMR for an upgrade of his discharge; however, the Board denied his request on 18 April 2019. 12. The Board should consider the applicant's overall service record and provided 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 to include two deployments, the nature of his misconduct, the possibility of mild TBI, the bar to reenlistment, his awards and decorations, the reason for his separation and whether to apply clemency. The Board found evidence of mitigation in-service, his expressed remorse and found the applicant continued to pay his debt while deployed. Based upon a preponderance of evidence, the Board determined that clemency was warranted and that the character of service and reason for separation the applicant received upon separation required correction. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD form 214 for the period of service ending 26 August 2014 as follows: Item 24 (Character of Service) – “Honorable” vice “Under honorable conditions (general)”, Items 25 (Separation authority) and 26 (Separation Code) – “AR 635-200, Chap 5 with the corresponding separation code” vice “AR 635-200, Chap 14” and “JKQ”, and Item 28 (Narrative reason for separation) – “Secretarial Authority” vice “Misconduct, Serious Offense.” 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. 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 separation with honor. Issuance of an honorable discharge certificate is appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Serious Offense), 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. 2. 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) AR20180011745 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180011745 5 ABCMR Record of Proceedings (cont) AR20180011745 4