BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20180016924 APPLICANT REQUESTS: The applicant requests an upgrade of his under honorable conditions (general) discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * 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: a. He received his under honorable conditions (general) discharge more than 20 years ago. Since that time he has been a productive member of society. He has been a manager for over 10 years and he became the owner of Cowboys Choice in 2004. He has been on time since those incidents he was discharged on. He was the Soldier of the Quarter and qualified for the Soldier of the Year. b. He was only late on two occasions. Once for a battalion formation which he was not given a time to be there. He showed up at 9:00 a.m. like he was required to be. The other incident was a health and welfare inspection. He was not given the information by his squad leader. He was woken up off base and he was required to be there in one hour. He was one hour and a half away. He tried to get there on time. c. He felt like he was not given a fair chance to explain when he was given a notice to appear to see the first sergeant. It was him against the first sergeant and his sergeant first class. He did not have a chance since the sergeant first class was not in his corner. He believes he served his country well and deserves to be recognized. 3. On 19 July 1995, the applicant enlisted in the Regular Army for a period of 4 years. 4. His record contained General Counseling Forms that show he was frequently counseled for: * failing to report an accident on two occasions * driving a military vehicle on an unauthorized mission * wearing an improper uniform for range qualification * failing to be at his appointed place of duty on multiple occasions (no less than four times) * a letter of indebtedness * misconstruing priorities and lack of responsibility * missing movement through neglect * dereliction of performance of duties due to neglect * violating barracks standard operating procedures * failing to inform his chain of command about a traffic citation and court appearance 5. On 7 April 1997, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for having a vehicle accident and with intent to deceive making an official false statement to Staff Sergeant B which was known to be false to him at the time. 6. On 3 June 1998, he received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty at the time prescribed. 7. On 15 October 1998, a Mental Status Evaluation psychiatrically cleared the applicant for any administrative separation action deemed appropriate by his chain of command. 8. On 21 October 1998, a Report of Medical Examination cleared the applicant for administrative separation action. 9. 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 was based on the applicant's misconduct, receipt of NJP, failing to report an accident, and numerous instances of counseling for failing to report to his appointed place of duty. The commander recommended the issuance of a general discharge and informed the applicant of his rights. a. On 16 November 1998, the applicant acknowledged receipt of the commander's intent to separate him and elected to submit statements in his own behalf. He was advised by counsel 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 patterns of misconduct. c. The applicant submitted a statement in his own behalf. In pertinent part, he stated during the time he had served he had been highly regarded for his leadership and initiative. He was honored with many awards and achievements. He had received: Soldier of the Quarter, Certificates of Achievement, and various driver commendations as most distinguished. During this period he had tried to upgrade his education. For certain reasons he had not been able to fulfill his goal of becoming a child psychiatrist. His only opportunity to receive or continue his education was by receiving an honorable discharge. d. His intermediate commander recommended approval of the separation action with a general discharge. e. The separation authority approved the applicant's discharge and directed he receive a general discharge. 10. On 23 December 1998, 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 an under honorable conditions (general) character of service. He completed 3 years, 5 months, and 5 days of active service this period. He was awarded or authorized the: * National Defense Service Medal * Humanitarian Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Parachutist Badge * Driver and Mechanic Badge with Driver-W Bar 11. 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. 12. 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: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 or post-service mitigating factors 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 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 (Personnel Separations – Enlisted Personnel), 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. 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) AR20180016924 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016924 6 ABCMR Record of Proceedings (cont) AR20180016924 5