IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190009090 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from general, under honorable conditions to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of a DD Form 149 (Application for Correction of Military Record) * Character References (x3) 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 to qualify for veterans scholarship benefits some colleges require a fully honorable discharge. 3. On 16 September 1998, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty 19K (M1 Abrams Armor Crewman). He served in Germany, but his specific dates of service are not available. 4. Five Developmental Counseling Forms, dated between January and June 2001, show the applicant was counseled on: * 24 January 2001, for not being at his appointed place of duty * 24 April 2001, for low motivation; poor conduct and performance; his appearance, haircut, and uniform were up to standards; not recommended for Soldier of the Month board because he not ready; he needed to show up for remedial physical training until he took the Army Physical Fitness Test * 24 April 2001, for failure to be at his appointed place of duty * 8 May 2001, for failure to make a payment on his Deferred Payment Plan * 5 June 2001, for lack of initiative and drive; he had to be supervised on everything; substandard conduct and performance; he had the ability to be a team leader, but he need to take charge more often; he was not ready to go to the Soldier of the Month Board; and that he should take college classes 5. Three General Counseling Forms, dated between 1999 and 2000, show the applicant was counseled on: * 26 October 1999, for disobeying the commander’s visitation policy, by having a female guest in his room, on 20 October 1999, and stating to the charge of quarters (CQ) that she was gone when she remained in his room * 23 November 1999, for failing to report to extra duty on time, on 21 November 1999 * 15 September 2000, it appears, the applicant was being counseled for leaving his guard post before being properly relieved and for not being in the proper uniform. When he was told to do grass drills as punishment; he stated he could not because of his knees, as such, he was counseled for not following instructions, and being disrespectful toward a noncommissioned officer (NCO) 6. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on: a. 8 November 1999, for violating a lawful order by having a female guest in the troop billets and wrongfully lying to an NCO CQ by stating she had left the billets. His punishment consisted of reduction to the pay grade of E-2, a forfeiture of pay (suspended until 7 May 2000), restriction, and an oral reprimand. On 8 December 1999, the forfeiture of pay was vacated after he failed to go to his appointed place of duty on 21 November 1999. b. On 3 October 2000, for being insubordinate in his language and deportment toward an NCO, on 13 September 2000. His punishment consisted of 3 days of extra duty. 7. The applicant’s service record contains a DA Form 31 (Request Authority for Leave), dated 23 March 2001, showing he requested leave from 31 March to 22 April 2001. 8. On 4 May 2001, he accepted NJP for absenting himself from his unit without authority from on or about 22 April 2001, 2400 hours, until 2025 hours, on 23 April 2001. His punishment consisted of reduction to pay grade E-3, a forfeiture of pay, extra duty, restriction, and an oral reprimand. 9. On 14 March 2001, the applicant’s first sergeant requested involuntary administrative separation proceedings for the applicant under the provisions of chapter 14-12b (Pattern of Misconduct) with a general discharge. 10. On 22 May 2001, a Report of Mental Status Evaluation shows the applicant was psychiatrically cleared for administrative action deemed appropriate by his chain of command. On 23 May 2001, the applicant was also determined to be medically qualified for separation. 11. On 5 August 2001, the applicant’s commander notified him of the intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200, chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct with a general discharge. The specific reasons cited are several instances of the following: failure to report, disobeying lawful orders, disobeying NCO’s, and disrespecting NCO. 12. On 5 August 2001, the applicant acknowledged receipt of the commander's intent to separate him for misconduct-pattern of misconduct. On 8 August 2001, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the type of discharge he could receive and of the rights available to him. He was not entitled to a personal appearance before a separation board. The available evidence does not indicated that he submitted any statements on his own behalf. 13. The applicant's immediate and intermediate commanders initiated separation action against him in accordance with chapter 14, AR 635-200, for misconduct-pattern of misconduct. 14. On 30 August 2001, the separation authority approved the applicant's discharge under the provisions of chapter 14, AR 635-200, by reason of misconduct-pattern of misconduct, and the issuance of an Under Honorable Conditions Discharge Certificate. 15. The applicant provides the following character references: a. Ms. C states, it is with great pleasure that she recommends the applicant for an upgrade of his discharge. The applicant is not only diligent and inspiring, but he is compassionate. He has been an outstanding citizen working for the government helping veterans within the Department of Veterans Affairs. His interest in rehabilitation counseling definitely comes as no surprise. His desire to help others is more than just a hobby but truly his life’s mission and passion. His military time abroad and experience working with and mentoring youth demonstrates firsthand experience of trauma. Having someone like the applicant, who will take his degree and education to enhance the community and individual lives, is important to any organization that is developing their brand. The applicant will not only represent the mission and values of the Department of Veterans Affairs well in his endeavors but help to establish himself as a prominent alumnus if given the opportunity to exceed. She hopes the applicant will be awarded an honorable discharge. If there is any further information needed, please contact her. b. Mr. V states he considers the most promising individuals that he has come across. The Department of Veterans Affairs would definitely profit from his discharge being upgraded. His ability to understand components of the human mind and human behavior, despite being a novice in the field, is comparable to those of us who have spent several years in education and experience. The applicant is able to understand complex and advanced concepts and theories to continue to improve upon his knowledge. His is not only willing to learn but able to learn in various environments, which is important to this field of study. Apart from his enthusiasm for psychology, he is also able to encourage even other students to push their academic limits so that they progress to the higher levels of understanding. He has seen the applicant engage in hours of researching when in doubt, which is important when developing treatment plans and working with others. c. Ms. D states it is with great privilege that she writes to the Board recommending the applicant for an upgrade of his discharge. The applicant has worked for him in various capacities and has proven to be a hardworking and compassionate individual. In his opinion, the applicant’s experience dealing with diverse populations and experiences working with those who have experienced both physical, mental, and emotional challenges make him a prime candidate to get his discharge upgraded to honorable. During the past 15 years of their acquaintance, he has served with the applicant in both professional and volunteer settings. 16. Chapter 14, 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. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. 17. The applicant completed 2 years, 11 months and 22 days of his 3 year enlistment obligation. He was discharged under the provisions of AR 635-200, chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct with a general discharge, as a result of several instances of failure to report, disobeying lawful orders, disobeying NCO’s, and for being disrespectful toward NCO’s. 18. The applicant requests an upgrade of his discharge so that he may be eligible to receive veteran’s scholarship benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency 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 and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the post-service letters of reference and the applicant’s reason for requesting a discharge upgrade. After that review, the Board determined them to be insufficient to overcome the multiple instances of misconduct and support 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. 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 : : : 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): NA 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. AR 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. Chapter 14, 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. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) 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. 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) AR20190009090 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009090 7 ABCMR Record of Proceedings (cont) AR20190009090 6