BOARD DATE: 31 January 2020 DOCKET NUMBER: AR20180015839 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 from the Armed Forces of the United States), dated 27 June 2018 * Enlisted Record Brief (Active Army Enlisted), dated 10 September 2002 * Orders 284-001 (Discharge Orders), issued by the Taegu Transition Center, 19th Theater Support Command, Republic of Korea on 11 October 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 26 October 2002 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 was told he could get his discharge upgraded and that there is benefit in getting his discharge upgraded. He is in the process of starting a business and would like to explore veteran benefits to include loans that can help him for startup revenue. He would also like the honor of saying that he has the highest possible discharge status. 3. The applicant enlisted in the Regular Army on 20 March 2001. He completed training as a military policeman. 4. The applicant's record shows he was counseled on at least 27 separate occasions between 25 October 2001 and 10 June 2002. His DA Forms 2856 (Development Counseling Forms) show he was counseled on the following dates for the stated reasons: * 25 October 2001 – accountability and responsibility due to a loss of 30 rounds of 5.56 millimeter ammunition * 30 October 2001 – performance/professional growth * 1 November 2001 – corrective training due to unacceptable living conditions * 24 November 2001 – congratulation on a job well done while conducting force protection measures of access security at gate 4, Camp Walker * 30 November 2001 – performance and professional growth * 4 December 2001 – the legal drinking age for the consumption of alcohol while assigned to the Republic of Korea and the consequences if he chose to ignore the policy * 10 December 2001 – failure to successfully pass a diagnostic Army Physical Fitness Test (APFT) * 28 December 2001 – performance counseling for Christmas break * 2 January 2002 – the expectations of him as a member of the 4th Platoon * 2 January 2002 – performance for the month of December 2001 and information of the upcoming events for the month January 2002 * 18 January 2002 – failure to obey an order or regulation under Article 92, Uniform Code of Military Justice (UCMJ), by consumption of alcohol by a minor/underage drinking * 31 January 2002 – performance, areas of improvement, physical training (PT), promotion and upcoming events * 15 February 2002 – failure to be at his appointed place of duty, PT, without informing his chain of command and failure to have proper training gear * 6 March 2002 – job performance, upcoming events, and general information * 18 March 2002 – failure to obey a lawful order, poor job performance * 1 April 2002 – guidance on how to deal with alcohol, the alcohol dependency program, company policy on alcohol (admission to an alcohol problem) * 8 April 2002 – failure to obey a lawful order to clean his room and the storage room, going off post and consuming alcohol underage, failure to take the proper steps to set up an appointment with the alcohol dependency program, the purpose of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), being caught drinking, and to expect to be punished under the UCMJ * 8 April 2002 – being command referred for the ADAPCP, provided information, which included names and points of contact for help with his problem * 9 April 2002 – violating a lawful order by consuming alcohol while under age * 29 April 2002 – failure to obey a lawful order by being exactly 6 minutes and 46 seconds late for the 0830 accountability formation at the bus stop that morning and for failure to turn in a Reply By Endorsement on Vehicle Safety that he was to have by 0900 that morning * 29 April 2002 – failure to shave after being told to shave during lunch, being late for 1300 formation at the motor pool after being counseled that morning for being late to the 0830 accountability formation, and lying to his squad leader when he stated why he did not turn in a 500 word "RBI" from a previous incident * 2 May 2002 – failure to obey a lawful order to clean his room * 2 May 2002 – failure to do what was expected of him as described in his previous counselings * 2 May 2002 – unacceptable duty performance for the month of April 2002 and being enrolled in the ADAPCP in the month of April 2002 * 4 June 2002 – improved duty performance for the month of May * 7 June 2002 – loss of road gear * 10 June 2002 – team change expectations 5. The applicant accepted nonjudicial punishment (NJP) on or about 14 February 2002, under the provisions of Article 15 of the UCMJ, for violating a lawful general regulation by wrongfully consuming alcohol while under the age of 20 years, on or about 11 January 2002. 6. The applicant's company commander was notified in a Rehabilitation Summary, dated 2 July 2002 that the applicant had been referred for counseling for a blotter incident on 9 April 2002 and that a rehabilitation treatment meeting was held and the applicant entered the outpatient program on 24 April 2002. The commander was told the following: a. The applicant missed his group treatment on 25 June 2002 and in a sworn statement, he admitted to having consumed alcohol twice. The first time was about two weeks prior and he had several beers. The second time was on 28 June 2002, when he went out to clubs with a friend, met other MPs, and had 10 beers. b. Based on the drinking incidents and an assessment of the applicant's potential for continued military service, further rehabilitative efforts by that program were considered to be nonproductive. c. As of 2 July 2002, the applicant was terminated from the ADAPCP as it appeared he would not profit from the rehabilitative process and would detract from the progress of others. 7. The applicant accepted NJP on or about 17 July 2002, under the provisions of Article 15 of the UCMJ, for violating a lawful general regulation by wrongfully consuming alcohol while under the age of 20 years on or about 28 June 2002. 8. The applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), Chapter 9, for alcohol rehabilitation failure. 9. The applicant acknowledged receipt of the notification on 24 September 2002. He consulted with counsel and made an election not to submit a statement in his own behalf. 10. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 9, by reason of rehabilitation failure. The separation authority approved the recommendation for discharge on 4 October 2002 and directed the applicant be issued an under honorable conditions (general) discharge. 11. The applicant was discharged on 26 October 2002, under the provisions of Army Regulation 635-200, Chapter 9, for alcohol rehabilitation failure. He completed one year, seven months, and seven days of net active service this period. His DD Form 214 confirms his discharge was characterized as under honorable conditions (general). 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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 reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status. 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) AR20180015839 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015839 6 ABCMR Record of Proceedings (cont) AR20180015839 5