IN THE CASE OF

BOARD DATE:  27 January 2020

DOCKET NUMBER:  AR20190009732


APPLICANT REQUESTS:  upgrade his general discharge under honorable conditions 
to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Army Discharge Review Board (ADRB))
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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 he believes his discharge was inequitable because it was based 
on two incidents that occurred during his last deployment:  one resulted from a series of 
miscommunications, and the second happened because he felt loyalty towards a fellow 
Soldier.  In his more than 72 months of service, these were the only instances of 
misconduct; the applicant asserts he was never given a chance for remedial action.  

	a.  He joined the Army at 17, and his intent was to make the Army a career.  He 
maintains he made a mistake when he chose to reenlist and remain at the same duty 
station; a new chain of command came in that included leaders with whom he had had 
friction in the past.  He believes he got "stuck in a rut," but his heart was "always for [his] 
brothers."  

	b.  The applicant asserts, had he better understood the legal process, he would have 
fought the nonjudicial punishments (NJP) he received, as well as his discharge.  He 
acknowledges making poor decisions, and now, from the sidelines, he must watch what 
his friends are experiencing.  The applicant states he would be humbled if the Board 
gave him the opportunity to rejoin the fight, and he feels getting this upgrade would be a 
solid first step.
3.  The applicant's service records show:

	a.  On 8 October 2003, the applicant enlisted into the Regular Army for 4 years; he 
was 17 years old.  Following initial training, orders assigned him to Fort Wainwright, AK.

	b.  On 17 August 2005, the applicant deployed with his unit to Iraq.  Effective 
8 October 2005, his chain of command promoted him to specialist/E-4.  On 11 March 
2006, he immediately reenlisted for 6 years.  On 1 December 2006, the applicant 
redeployed from Iraq back to Fort Wainwright.  He deployed a second time to Iraq on 
20 September 2008.

	c.  On 11 May 2009, the applicant accepted NJP under Article 15, Uniform Code of 
Military Justice (UCMJ) for making a false official statement to a sergeant first class by 
falsely claiming "one of the twins in [his] wife's womb [had] died within a few days," 
when, in fact, the baby actually died in October 2008; punishment included reduction to 
private first class/E-3.  The applicant's record is void of other documentation pertaining 
to the aforementioned allegation, the health of the applicant's wife during her 
pregnancy, and/or medical verification of when the twin fetus actually died.

	d.  On 19 August 2009, while still deployed in Iraq, the applicant's platoon sergeant 
counseled him for multiple violations of the UCMJ and of command policies; the platoon 
sergeant specifically cited the applicant's alleged disobedience of MND-N (Multi-
National Division – North) General Order Number 1, which did not allow the 
consumption of alcohol.  The applicant's response to the counseling is not available for 
review; however, the platoon sergeant listed the following in the summary of counseling:

*	On 19 August 2009, at about 0500, a noncommissioned officer (NCO) 
observed the applicant showing signs of being intoxicated; the NCO found an 
empty vodka bottle nearby
*	Upon investigation, the applicant initially told members of his chain of 
command he knew nothing about the alcohol and had not been drinking; 
however, the applicant later admitted to his first sergeant that, after finding the 
vodka bottle in a bomb shelter, he had consumed vodka with another Soldier
*	The platoon sergeant cited the applicant for consuming alcohol while knowing 
he would be performing a mission later that morning; by being drunk, the 
applicant would have placed his fellow Soldiers at risk

	e.  On 20 August 2009, the applicant redeployed from Iraq to Fort Wainwright.  
On 26 August 2009, the applicant accepted NJP for violating paragraph 3c, MND-N 
General Order (GO) Number 1, by wrongfully consuming alcohol on 19 August 2009; 
along with other punishments, he was reduced to private (PV2)/E-2.  (A copy of 
MND-N GO Number 1 is not available for review; in addition, the applicant's record does 
not indicate whether the command referred him to the Army's substance abuse program 
(ASAP).)

	f.  On 23 September 2009, the Community Mental Health Service at Fort Wainwright 
conducted a behavioral health evaluation of the applicant.  The evaluator found the 
applicant was within normal limits in all evaluated areas; in addition, the applicant had 
no psychiatric disease or defect, and he met medical retention standards.  The 
evaluator further stated no further mental health contact was necessary, and he cleared 
the applicant for any administrative separation action contemplated by the command.

	g.  On 25 September 2009, the applicant underwent a separation physical; apart 
from reflecting that the applicant had broken his ankle prior to entering the service and 
was experiencing shoulder pain as a result of a November 2008 injury, the examining 
physician noted no other medical conditions.

	h.  On or about 29 September 2009, the applicant's commander advised him, via 
memorandum, of his intent to separate the applicant under paragraph 14-12b (A Pattern 
of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation (AR) 
635-200 (Active Duty Enlisted Administrative Separations).  The commander's bases for 
this separation action were the applicant's false statements regarding the death of his 
child and reporting to work drunk while deployed in Iraq.  The applicant acknowledged 
receipt of the notification on 29 September 2009.

	i.  On 7 October 2009, after consulting with counsel, the applicant acknowledged 
counsel had advised him of the basis for the separation action, and had informed him of 
his rights and the effect of waiving those rights.  The applicant requested representation 
by counsel and indicated he did not intend to submit statements in his own behalf.

	j.  In an undated memorandum, the applicant's commander recommended the 
separation authority discharge the applicant under the provisions of paragraph 14-12b, 
AR 635-200; the commander stated his reasons were the applicant's false statement 
regarding the death of his child and because he had reported to work drunk while 
deployed in Iraq.  In addition, the commander showed required comments pertaining to 
counseling and rehabilitation efforts as "N/A" (not applicable), and the commander did 
not include a request to waive further rehabilitative efforts.

	k.  At some point prior to 19 November 2009, the separation authority approved the 
commander's recommendation and directed the applicant's general discharge under 
honorable conditions; the separation authority's approval did not address a waiver of 
rehabilitative efforts.  On 19 November 2009, the applicant was discharged accordingly.  
His DD Form 214 shows he completed 3 years, 8 months, and 9 days of his 6-year 
reenlistment contract.  The remarks section listed his two deployments to Iraq and his 
one reenlistment; not reflected was his continuous honorable service from 8 October 
2003 through 10 March 2006.  He was awarded or authorized:

*	Iraq Campaign Medal with two bronze service stars
*	Army Commendation Medal
*	Army Achievement Medal
*	Army Good Conduct Medal (1st Award)
*	National Defense Service Medal
*	Global War on Terrorism Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon (3rd Award)
*	Combat Infantryman Badge
*	Driver and Mechanic Badge with Mechanic Component Bar

	l.  On 26 May 2010, the applicant petitioned the ADRB requesting an upgraded 
character of service.  

		(1)  The applicant stated his desire to receive Department of Veterans Affairs 
(VA) education benefits so that he could better provide for his family; he also wanted to 
show an honorable character of service on his job applications.  

		(a)  He felt, in effect, the misconduct that led to his discharge should not 
overshadow his otherwise honorable service, and noted he had deployed twice to Iraq. 

		(b)  The first NJP was for lying to a noncommissioned officer (NCO); this situation 
was totally mishandled, and his wife suffered as a result.  

*	In effect, his chain of command sent him home from deployment due to his 
wife's medical complications, which were related to the birth of their second 
child
*	When he got there, they said he would be sent back to Iraq because he had 
(falsely) told them his wife lost a twin child; the applicant and his wife really 
believed they had lost a twin to their baby, but his wife's doctor was unable to 
prove it
*	The applicant's wife had serious medical conditions:  gestational diabetes 
(type of diabetes incurred during pregnancy), hematoma (solid swelling of 
clotted blood within tissue), deep vein thrombosis (blood clot in deep veins), 
and placenta abruptions (placenta separating from uterus before delivery)
*	His wife's doctor asked for the applicant to come home; at no point did the 
applicant have a reason to lie; the applicant nonetheless accepted the 
punishment so that he could move on from the situation
*	near the end of his deployment, he and a battle buddy got into trouble for 
drinking alcohol; he responded honestly when his chain of command asked if 
he had been drinking, and he acknowledged he had drunk enough to be 
intoxicated
*	The applicant's battle buddy made comments to an NCO, but that battle 
buddy is still serving on active duty, while the applicant was discharged; the 
applicant realizes he was wrong, but does not understand why his 
subsequent discharge prevented him from receiving VA benefits

		(2)  On 16 March 2011, the ADRB denied the applicant's request because it 
found no mitigating factors to warrant an upgraded character of service.

4.  The applicant argues his discharge was inequitable because it was based on two 
incidents that occurred during his last deployment and within months of his adverse 
discharge; he was on active duty for more than 72 months, deployed twice to Iraq, and 
the majority of his service was honorable.

	a.  AR 600-85 (ASAP), in effect at the time, required commanders to refer all 
Soldiers to an ASAP counseling center for evaluation when they were identified as 
potential alcohol abusers by an incident involving the use of alcohol.  The evidence of 
record does not reflect the applicant was referred for evaluation.

	b.  During the applicant's era for service, commanders were to initiate separation 
action against Soldiers who displayed a pattern of misconduct involving acts of 
discreditable involvement with military authorities and/or conduct that was prejudicial to 
good order and discipline.  

		(1)  On 11 May 2009, the applicant accepted NJP for making a false official 
statement.

		(2)  On 19 August 2009, while deployed in Iraq, the applicant admitted to drinking 
alcohol, in contravention of an MND-N GO; he accepted NJP for this misconduct on 
26 August 2009.  Although the commander's separation recommendation stated the 
applicant had reported to work drunk during deployment, the platoon sergeant's 
counseling statement (prepared at the time of the alleged offense) indicated instead the 
applicant was off-duty, but was supposed to participate in a mission later that morning.

	c.  Paragraph 1-16, AR 635-200 mandated the commander's maximum use of 
counseling and rehabilitation before reaching a determination a Soldier had no potential 
for further military service; this was particularly true for Soldiers being considered for 
separation based on showing a pattern of misconduct.  

		(1)  Soldiers not in a training status were to be locally reassigned at least once, 
with a minimum of 3 months of duty in each unit; such reassignments could be between 
battalion, as well as brigade-sized units.  Separation authorities could waive 
rehabilitative transfers at any time, whether on or before an approved separation date.  

		(2)  The evidence of record indicates the applicant's company commander 
neither addressed rehabilitative efforts in his separation recommendation, nor asked the 
separation authority to approve a waiver.  Additionally, the separation authority made no 
mention of a waiver of rehabilitative efforts in his approval memorandum. 

	d.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.

BOARD DISCUSSION:

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 
to include his deployment to Iraq during which he earned the Combat Infantryman 
Badge, the frequency and nature of his misconduct, the reason for his separation, and 
whether to apply clemency. The Board agreed that, while his discharge for a pattern of 
misconduct was appropriate, the characterization of his service was too harsh relative to 
the misconduct.  Based on a preponderance of evidence, the Board determined the 
applicant's character of service should be upgraded to honorable.  The Board also 
concurred with the corrections addressed in Administrative Note(s) below.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that, in addition to the 
corrections addressed in Administrative Note(s) below, all Department of the Army 
records of the individual concerned be corrected by reissuing his DD Form 214 for the 
period ending 19 November 2009 to show his service was characterized as honorable.

 

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):

1.  The version of AR 635-5 (Separation Documents), in effect at the time, mandated 
the inclusion of remarks when separating Soldiers received a less than honorable 
character of service; the regulation added the comment to item 18 (Remarks) and 
stated:  "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed 
on the DD Form 214) TO (date before commencement of current enlistment)."

2.  AR 600-8-22 (Military Awards) authorizes one bronze service star for the Iraq 
Campaign Medal based on each campaign in which a Soldier has participated; 
authorized campaigns for the Iraq War include:

*	20050817-20061201;20080920-20090820
*	Iraqi Governance (29 June 2004 to 15 December 2005)
*	National Resolution (16 December 2005 to 9 January 2007)
*	Iraqi Surge (10 January 2007 to 31 December 2008)
*	Iraqi Sovereignty (1 January 2009 to 31 August 2010)

3.  As a result, amend the applicant's DD Form 214, ending 19 November 2009, as 
follows:

	a.  Delete, from item 13 (Decorations, Medals, Badges, Citations, and Campaign 
Ribbons Awarded or Authorized), the Iraq Campaign Medal with two bronze service 
stars.

	b.  Add the following:

*	Item 13 – Iraq Campaign Medal with four bronze service stars
*	Item 18 – "CONTINUOUS HONORABLE SERVICE FROM 
20031008 TO 20060310"

REFERENCES:

1.  Title 10, USC, 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 ABCMR determines it would be in the 
interest of justice to do so.

2.  AR 635-200, in effect at the time, prescribed policies and procedures for the 
administrative separation of enlisted personnel.

	a.  Paragraph 1-16 (Counseling and Rehabilitative Requirements), mandated the 
commander's maximum use of counseling and rehabilitation before reaching a 
determination a Soldier had no potential for further military service; this was particularly 
true for Soldiers being considered for separation for a pattern of misconduct.  Soldiers 
not in a training status were to be locally reassigned at least once, with a minimum of 
3 months of duty in each unit; such reassignments were to be between battalion, as well 
as brigade-sized units.  Separation authorities could waive rehabilitative transfers at any 
time, whether on or before a separation approval date.

	b.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a 
separation with honor.  The honorable characterization was appropriate when the 
quality of the Soldier's service generally met the standards of acceptable conduct and 
duty performance.
	c.  Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to 
include for a pattern of misconduct and the commission of a serious offense.  Paragraph 
14-12b stated members were subject to separation under this provision when they 
showed a pattern of misconduct involving acts of discreditable involvement with military 
authorities, and/or displayed conduct that was prejudicial to good order and discipline.

3.  AR 600-85 (ASAP), in effect at the time, stated abuse of alcohol was inconsistent 
with Army values and required commanders to intervene early.  Commanders were to 
refer all Soldiers to an ASAP counseling center for evaluation within 5 working days 
after the Soldiers were identified as potential alcohol abusers as a result of an incident 
involving the use of alcohol.  Use of alcohol during duty hours was specifically 
condemned.

4.  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.  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.  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)	 AR20190009732


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190009732


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ABCMR Record of Proceedings (cont)	AR20190009732


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