BOARD DATE: 28 May 2020 DOCKET NUMBER: AR20190005081 APPLICANT REQUESTS: in effect, upgrade of his service characterization to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter from the applicant's employer FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 never was Absent Without Leave (AWOL) and did not know he had been marked AWOL. 3. The applicant's service records contain the following documents for the Board's consideration: a. A DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), which shows the applicant enlisted in the United States Army Reserve (USAR) as a Private (PVT)/E-1 on 22 March 2003 and entered the delay entry program. b. He enlisted in the regular Army on 25 September 2003. c. A memorandum from his company commander, dated June 2004, Subject: Recommendation for Separation under the Provisions of Army Regulation 635-200, Chapter 13, which shows: (1) The factual reason for the recommendation was the applicant demonstrated unsatisfactory performance by failing his military occupational specialty course of instruction due to academic deficiency and displayed disruptive behavior of characteristics by continued disciplinary infractions and disregard for rules and regulations and authority. The applicant violated Articles 86, 92, and 134 of the Uniform Code of Military Justice (UCMJ) by failing to be at his appointed place of duty on numerous occasions, failing to obey regulations and orders, and altering his sick call slip to reflect he was on quarters when he was not. He received three Article 15s for the offenses and could have been charged with others. It was the assessment of the commander, the applicant would continue to be a disciplinary problem until he was separated from the military. Behavior of this nature is indicative of an individual who either cannot or will not develop to become a satisfactory soldier. He was rehabilitatively transferred to a different platoon in an effort to give him a new start, given three Article 15s, UCMJ, and counseled. It was recommended the applicant be separated from the Army due to unsatisfactory performance. (2) He received an Article 15s on 5 February 2004, 8 March 2004, and 4 May 2004. (3) The commander recommended the applicant receive a general, under honorable conditions discharge. He had not been awarded a MOS; therefore, he should not be transferred to the Individual Ready Reserve (IRR). c. A memorandum from the applicant's battalion commander, dated 2 June 2004, approved the separation of the applicant for unsatisfactory performance. He directed a general, under honorable conditions discharge for the applicant. d. A DD Form 214, which shows the applicant enlisted on Active Duty on 25 September 2003 and was discharged on 4 June 2004. He had 8 months and 10 days of active duty service. The reason for discharge was unsatisfactory performance. He received a general, under honorable conditions discharge. e. A DD Form 4/1, which shows the applicant enlisted in the Army a second time on 23 July 2008. He enlisted for a period of 4 years in the rank of PVT. f. Eleven DA Forms 4187 (Personnel Action), which show: * the applicant was changed from present for duty (PDY) to AWOL on 23 March 2010 * the applicant was changed from AWOL to PDY on 25 March 2010 * the applicant was changed from PDY to AWOL on 3 May 2010 * the applicant was changed from AWOL to PDY on 4 May 2010 * the applicant was changed from PDY to AWOL on 19 May 2010 * the applicant was changed from AWOL to PDY on 24 May 2010 * the applicant was changed from PDY to AWOL on 12 July 2010 * the applicant was changed from AWOL to PDY on 13 July 2010 * the applicant was changed from PDY to AWOL on 3 August 2010 * the applicant was changed from AWOL to PDY on 9 August 2010 * the applicant was changed from PDY to AWOL on 28 January 2011 g. A memorandum from his company commander Subject: Commander's Report proposed separation under Army Regulation 635-200, chapter 14-12b a pattern of misconduct, which shows: * he was being recommended for separation due to being AWOL on several occasions * he received a Summary Court-Martial on 19 November 2010 h. A memorandum from his battalion commander, dated 27 January 2011, which approved the applicant's separation of the applicant and directed his service be characterized as general, under honorable conditions. i. A DD Form 214 which shows the applicant enlisted in the Army on 23 July 2008 and was discharged on 14 February 2011. He had 2 years, 5 months, and 20 days of active service. Under Item 18. Remarks, it states Member has not completed his first full term of service. Dates of his time lost during this period were listed. He was discharged for misconduct (AWOL) and received a general, under honorable conditions discharge. 4. The applicant's service records are void of the summary court-martial mentioned in the commander's report. 5. The applicant provided the following documents for the Board's consideration: a. A DD Form 214 for the period ending 14 February 2011, which was included in the applicant's service record. b. An undated letter from the applicant's employer which states the applicant started working for him on 15 September 2017 and was a good and consistent worker. He was a good and reliable worker. 6. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 7. See applicable references below. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited honorable service, no meritorious personal awards, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Furthermore, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Enlisted Personnel), sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 3 discusses the types of discharges and states: (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. (2) 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 separation specifically allows such characterization. It will not be issued to soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to AD. b. Paragraph 14-12b states Soldiers can be separated for a pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 6. 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) AR20190005081 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1