ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS I BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180016772 APPLICANT REQUESTS: The applicant requests his discharge be upgrade and his service characterized as under honorable conditions, general in lieu of under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (x2) * DD Form 214 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, in effect, he believes his discharge should be upgraded due to mistreatment by his superiors. He states he felt singled out from day one; the first sergeant and section sergeant bullied him, because he was a prior service member; they wanted him out of the Army. 3. The applicant also states, in effect, he had orders to go to Ft. Benning, GA. Upon arrival they saw he was prior service, Army National Guard (ARNG), and sent him to [Fort Gordon], Augusta GA. His military occupational specialty (MOS) was 31L (Cable Systems Installer Maintainer) so he had to go back to basic training. When he returned to Fort Benning for advanced individual training, the class had been in training for 2 weeks and he had a hard time catching up. However, he graduated at the top of his class. His first duty station was Ft. Stewart, GA. He also stated: a. The Soldier he was replacing told him the chain of command did not like him because he was a prior ARNG Soldier. He tried to impress them, but that that didn't work. His workmanship was A+ and he never had a problem with his job. When his section sergeant started bullying him and verbally abusing him that's when things started going downhill. He started drinking more to ease his mind of the torture he had to go through from day to day. b. On his third write up, dated 21 July 1999, his section sergeant said he wanted him out of his Army, because he did not belong there. The bullying, harassing, and verbal abuse got worse. He asked to be put in another company and his requested was denied. He asked other section sergeants and platoon sergeants for help. But they said it was his problem. He was at their mercy. Now the drinking wasn't enough to cope with day to day life that's when he started smoking marijuana. c. When he failed a drug test and got written up, the section sergeant enjoyed that. He had never seen him so happy. That section sergeant left and he got a new section sergeant who understood him and saw what was going on. He promised him a general discharge and he got the captain to sign off on it. That's why he is asking that a general discharge be reconsidered. 4. According to his Personnel Qualification Record, the applicant served in the U.S. Air Force National Guard from June to November 1998 and in the Reserve (active duty) from 1993 to 1994. He enlisted in the Regular Army on 10 November 1998, and he held (MOS) 31L. 5. Thirteen General Counseling Forms dated between June 1999 and 7 June 2000, show the applicant was counseled for being late for formation, failure to return to his appointed place of duty after completion of the road march, failure of the alcohol analyzer test, failure to repair for performance training, accountability (lost pistol belt), failure to obey an order, failure to qualify on his assigned weapon, failure to return to his appointed place of duty in a timely manner, failure to come to formation on time, wrongful use of a controlled substance “THC,” and missing his guard shift. 6. A Specimen Custody Document – Drug testing shows on 2 February 2000, the applicant tested positive for “THC” [tetrahydrocannabinol, a chemical found in marijuana. 7. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: a. 23 August 1999, for absenting himself from his appointed place of duty from 0630 to 730 on 21 July 1999. His punishment consisted of extra duty and restriction. b. 9 May 2000, for wrongfully using marijuana between 24 December 1999 and 25 January 2000, a Schedule 1, controlled substance. His punishment consisted of reduction to pay grade E-2, a forfeiture of pay, extra duty, and restriction. c. 22 August 2000, for wrongfully using marijuana, a schedule 1 controlled substance, between 7 May and 5 June 2000. His punishment consisted of reduction to pay grade E-1, a forfeiture of pay and extra duty. 8. A Report of Mental Status Evaluations shows on 8 September 2000, the applicant was psychiatrically cleared for any administrative action deemed appropriate by his chain of command. A Report of Medical Examination shows on 22 September 2000, he was also medically qualified for separation. 9. On 24 October 2000, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for a pattern of misconduct. He cited the bases for the recommendation were numerous incidents of failure to report, for having received nonjudicial punishments [three are in the available record], and for failure to obey lawful orders. The commander advised him of his available rights and recommended that he receive a general discharge. a. On 25 October 2000, the applicant consulted with legal counsel, he was advised of the impact of the discharge action and he voluntarily waived consideration of his case by an Administrative Separation Board contingent upon receiving a characterization of service no less favorable than a general, under honorable conditions. He did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. b. On 27 December 2000, the separation authority disapproved the conditional waiver request and directed an Administrative Separation Board. c. On 23 January 2001, the applicant consulted with legal counsel and unconditionally waived consideration of his case by an Administrative Separation Board. d. On 1 February 2001, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than under honorable conditions. The applicant was to be reduced to the lowest enlisted rank. 10. On 15 March 2001 he was discharged accordingly. He completed 2 years, 4 months, and 4 days of creditable active service. He had 1 day of lost time and was authorized the: * National Defense Service Medal * Army Service Ribbon * Air Force Training Ribbon 11. On 6 August 2008, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 12. Army Regulation 635-200 states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record. 13. The applicant contends he was bullied and there were members of his unit who just wanted him out of the military. He was discharged after he received three nonjudicial punishments, two were for marijuana use, and numerous counseling statements for various reasons. The applicant submitted an unconditional waiver requesting a general discharge. His immediate commander did recommend that he receive a general discharge. However, neither his intermediate commanders nor separation authority supported the recommendation. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. . a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was 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, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record 3. 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 based on 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) AR20180016772 6 1