IN THE CASE OF: BOARD DATE: 21 November 2019 DOCKET NUMBER: AR20190003450 APPLICANT REQUESTS: The applicant requests an upgrade of his under honorable conditions (General) discharge honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) in lieu of a DD Form 149 (Application for Correction of Military Record) 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 he was young and allowed his personal life get the best of him while going through a divorce. Today he is older and knows how to handle and control himself. He is asking the board to consider his request for an upgrade to honorable. 3. On 2 October 1995, the applicant enlisted in the Regular Army for three years at the age 20. He completed initial entry training as well as airborne school and was assigned to his first duty assignment in Fort Bragg, NC as a combat medic (paratrooper). 4. On 1 May 1996, he was formally counseled for missing movement and failure to repair. He showed up in his physical fitness (PT) uniform not prepared for manifest call, stating he didn’t want to jump, almost causing 60 other paratroopers to risk missing a jump. 5. On 23 July 1996, the applicant received an Article 15 non-judicial punishment (NJP) for not being at his prescribed place of duty; accountability formation. 6. The applicant was counseled on five separate occasions from on or about 24 April 1997 through 15 October 1998 for: * Failure to shave before formation * Twice for Disrespecting a non-commissioned officer (NCO) * Failure to obey a direct order * Leaving his appointed place of duty * Improper use of Government credit card 7. On 15 December 1998, the applicant signed an agreement to participate in the RESOLVE Program which is established by Cumberland Country Department of Social Services to provide an alternative to prosecution of persons involved in domestic violence. The sessions were scheduled every Wednesday starting 17 February 1999 to 2 June 1999. 8. On 7 January 1999, he received an Article 15 NJP for failing to go to his appointed place of duty; PT formation. 9. The applicant was counseled on five separate occasions from 20 January 1999 through 5 February 1999 for: * Malingering * Failure to be at appointed place of duty * Lying to a NCO * Disrespect to an NCO * Failure to keep chain of command informed * Failure to obey a direct order 10. On 24 February 1999, the applicant underwent a command directed medical examination and on 18 March 1999 a mental evaluation deeming him qualified for a chapter 14 separation. 11. On 7 May 1999, the commander notified him that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) paragraph 14-12b, patterns of misconduct; his habitual disrespect, failure to obey lawful order, missing formation, and abuse of government credit card. The applicant acknowledged he understood his rights available and elected to submit a statement in his own behalf. In his statement he wrote in part, he would like to be allowed to continue his service on active duty. He acknowledged that he had a lot going on against him but would like another chance. He felt a lot of the counseling’s written against he was something personal between him and the NCO wrote them. He admitted to being late a few times but other Soldiers were as well but didn’t not receive NJP. As for the government credit card, his wife used it without his knowledge; he started an allotment to pay the debt off. The domestic violence charges he believes he was wrong but realized he was responsible for his spouses actions; once he completes the anger management classes that he’s enrolled in, the charges would be dropped. Since all this has happened he’s changed for the better and hasn’t been written up since. 12. The applicant’s commander recommended he be discharged under the provisions of AR 635-200, Chapter 14-12b for patterns of misconduct; specifically for the applicant missing formation, being disrespectful, receiving two article 15’s, his misconduct has effected the unit and the Soldiers in the company. The commander requested a waiver for rehabilitation, stating it would not be in the best interest of the Army as it would not produce a quality Soldier. a. His intermediate chain of command recommended approval and recommended the applicant receive a general discharge. b. On 14 May 1999, the appropriate approval authority approved the recommendation for discharge of the applicant, stating he would not be placed in the Individual Ready Reserve (IRR), and directed he be issued a general discharge. 13. On 17 August 1999, the applicant was discharged accordingly; His DD Form 214 shows he completed 3 years, 10 months, and 16 days of net active service. His record shows he completed initial training as well as airborne school prior to being assigned to his first duty assignment. He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Army Good Conduct Medal (GCMDL), Parachutist Badge, and Air Assault Badge. 14. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 15. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 16. The applicant states he was young and allowed his personnel life get the best of him while going through a divorce. He received several counseling’s addressing his lack of discipline and two NJP’s. He was also enrolled in a domestic violence program, established to provide an alternative to prosecution. 17. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. In accordance with Army Regulation 635-200, the “Honorable” characterization of service 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. In light of the applicant’s two Article 15 non-judicial punishments and numerous counseling’s for misconduct listed below, the applicant demonstrated a definite pattern of misconduct which was not sufficiently meritorious to warrant a fully honorable discharge. The Board determined that the general under honorarable conditions discharge that the applicant received was fair and appropriate in light of the circumstances. • Failure to shave before formation • Twice for disrespect of a non-commissioned officer (NCO) • Failure to obey a direct order • Leaving his appointed place of duty • Improper use of Government credit card • Malingering • Failure to be at appointed place of duty • Lying to a NCO • Disrespect to an NCO • Failure to keep chain of command informed • Failure to obey a direct order BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. (2) Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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) AR20190003450 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003450 6 ABCMR Record of Proceedings (cont) AR20190003450 5