BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190006389 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 or Dismissal from the Armed Forces of the United States), dated 26 March 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 December 2011 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, in effect, he is requesting an upgrade because his discharge was harsher than what he deserved. At the time immediately preceding his discharge, he was going through a custody battle. He requested leave for two days to attend court; however, upon returning to duty, he was told his leave had not been approved and he would be chaptered out for patterns of misconduct (missing six formations – three formations a day for each of the two days he was gone). He was going through a hardship at the time and he doesn't believe his actions should have been classified as a pattern. He understands the results of his actions were his responsibility and he must deal with the consequences. However, his discharge has affected his ability to find a suitable career and has made it difficult to provide for his family. An upgrade would change everything for him. 3. The applicant enlisted in the Regular Army on 9 August 2010. 4. The applicant’s service record contains DA Forms 4856 (General Counseling Form) that show he was counseled on several occasions, for the following offenses: * for missing formation on four separate occasions (3 August, 4 August, 8 August, and 9 August 2011) * for disobeying a lawful order from a noncommissioned officer (NCO), on 10 August 2011 5. The applicant accepted nonjudicial punishment (NJP) on 19 August 2011, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for four specifications of failing to go at the prescribed time to his appointed place of duty, on or about 3 August, 4 August, 8 August, and 9 August 2011; and one specification of willfully disobeying a lawful order on or about 10 August 2011. His punishment included a suspended reduction to the rank/grade of private /E-1; this was vacated on 13 September 2011, when he failed to go to his appointed place of duty on that day. 6. The applicant’s service record contains other General Counseling Forms that show he was counseled on several other occasions, for the following offenses: * for missing formation on 12 September and 16 September 2011 * for possible separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b (Patterns of Misconduct), on 21 September 2011 7. The applicant’s service record contains a DA Form 3822-R (Report of Mental Status Evaluation) that shows he received a command-directed mental status evaluation on 13 October 2011. The evaluation showed: * he was found to be fit for duty, including deployments * he could understand and participate in administrative proceedings * he could appreciate the difference between right and wrong * he met medical retention requirements, and did not qualify for a Medical Evaluation Board * he was enrolled in the Army Substance Abuse Program (ASAP) * he was screened for traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) with unremarkable results * he denied social or homicidal ideations * he did meet the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 * he was psychiatrically cleared for administrative procedures 8. The applicant's immediate commander notified the applicant on 31 October 2011, of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of his six violations for failure to report and one violation of willful disobedience of an NCO. He acknowledged receipt of the commander's notification memorandum the same day. 9. The applicant's commander formally recommended his separation prior to the expiration of his term of service on 4 November 2011, under the provisions of Army Regulation 635-200, Chapter 14, by reason of his patterns of misconduct. He again cited the aforementioned reasons for his recommendation. 10. The applicant consulted with counsel on 5 November 2011 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He elected not to submit a statement in his own behalf. 11. Consistent with the commander’s recommendations, the separation authority approved the applicant's discharge on 15 November 2011, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct, and directed that he be issued a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 7 December 2011. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct." His service was characterized as under honorable conditions (general). 13. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general, under honorable conditions discharge. After careful consideration, the ADRB denied his request on 20 April 2016. 14. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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 and the reason for his separation. While the applicant contended that his discharge was unfairly the result of his absence on 2 days to attend court, the record shows that he was guilty of 8 incidents of misconduct within 5 weeks (3 August, 4 August, 8 August, 9 August, 10 August, 12 September, 13 September, and 16 September 2011). Under these circumstances, the Board found a general under honorable discharge as just and equitable. 2. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, basis for clemency, or that relief was warranted. 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 states 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 members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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) AR20190006389 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006389 6 ABCMR Record of Proceedings (cont) AR20190006389 5