IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20190008426 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 from the Armed Forces of the United States), dated 4 June 2019, with 14-paged legal brief * General Officer Memorandum of Reprimand (GOMOR), undated, with acknowledgement letter, undated * Memorandum, dated 4 December 2002, subject: Memorandum of Reprimand * Memorandum for Record, dated 6 March 2003 * Memorandum, dated 12 March 2003, subject: Separation Under AR [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel], Chapter 14, Paragraph 14-12 c, for Commission of a Serious Offense, with acknowledgment letter, dated 12 March 2003 * Memorandum, dated 19 March 2003, subject: Acceptance of Responsibility and Request to Continue Military Service * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 April 2003 * five Affidavits, dated between 16 November 2017 and 18 January 2018 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. Counsel states: a. After attending basic training and advanced individual training the applicant was stationed in Yongson, Korea, from April 1998 through April 1999. He was then stationed at Fort Bragg, NC, from May 1999 through April 2003. During this time at Fort Bragg, he attended four training deployments at Fort Polk and Fort Campbell. In 2000, the applicant was selected as the Soldier of the Month, Soldier of the Quarter, and Soldier of the Year. In May 2001, he was deployed to Kosovo. b. On 9 August 2002, the applicant received a driving under the influence (DUI) in Fayetteville, NC. He was issued a GOMOR on 1 October 2002. He then attended the Army Substance Abuse Program. On 3 November 2002, he met with sergeant (SGT) Sxxxx for counseling. On 13 December 2002, he met with SGT Sxxxx proceeding a DUI on 7 December 2002. He attended an outpatient program. On 6 March 2003, he received a letter of intent for administrative separation. On 12 March 2003, he was notified of the impending separation. On 18 March 2003, he was convicted of one count of reckless driving while the other DUI was dismissed. On 25 April 2003, the applicant was discharged from the Army with a general discharge. c. Since his departure from the Army, the applicant has worked for Groupware International, as a travel technician from September 2003 until December 2008. Since January 2009 to present, he has been employed at Decisive Communications, a fiber optics construction company building cell phone towers. The applicant cares for his nine year old daughter and his disabled father, while also working towards his degree in Business Administration. He has been sober since June 2003. 3. The applicant enlisted in the Regular Army on 26 September 1997. 4. The applicant received a GOMOR on or about 1 October 2002. The reprimand stated in pertinent part: a. On 9 August 2002, the applicant was arrested by the Fayetteville Police Department for driving while impaired. He was administered a chemical breath test, which indicated his blood alcohol content was .15%. He was stopped for failure to maintain his lane. b. The imposing general officer indicated he was imposing the reprimand as an administrative action and not punishment under the Uniform Code of Military Justice (UCMJ), and that he intended to direct the filing of the reprimand in the applicant's Official Military Personnel File (OMPF). 5. The applicant submitted a rebuttal statement on 16 October 2002. The GOMOR was permanently filed in his OMPF on 4 December 2002. 6. A DA Form 4856 (Developmental Counseling Form), dated 18 February 2003, indicates the applicant was charged with DUI on or about 7 December 2002. It stated, this was his third alcohol related incident in the past seven months and his second DUI in the past three months. 7. The applicant's commander notified the applicant on 12 March 2003 of his intent to separate him from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. His commander cited as the specific reason, the applicant’s driving while impaired on 9 August 2002 and 7 December 2002. 8. The applicant submitted a statement in his own behalf on 19 March 2003, wherein he accepted responsibility for his actions and requested to continue his military service. 9. The applicant consulted with counsel on 21 March 2003 and acknowledged receipt of the notification memorandum. He further acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge were issued to him. 10. The applicant's commander formally recommended the applicant's separation on 2 April 2003, under the provisions of Army Regulation 635-200, Chapter 14-12c. The separation authority approved the recommended discharge on 3 April 2003 and directed that he be issued a general, under honorable conditions discharge. 11. The applicant was discharged on 25 April 2003. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His service was characterized as under honorable conditions (general). 12. The applicant provides five affidavits attesting to his work ethic, professionalism and character. 13. The Board should consider the applicant's overall military service, evidence, and statement 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 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, his statement regarding the Army Substance Abuse Program, the reason for his separation and his statement at the time, and whether to apply clemency. The Board found no evidence of in-service mitigation for the misconduct; the Board considered the affidavits the applicant provided, but did not find them sufficient to overcome the repeated instances of misconduct. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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 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. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is 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) AR20190008426 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008426 5 ABCMR Record of Proceedings (cont) AR20190008426 4