IN THE CASE OF: BOARD DATE: 23 January 2020 DOCKET NUMBER: AR20190012390 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20170003403 on 23 May 2019. Specifically, he requests his general under honorable conditions 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 15 June 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170003403 on 23 May 2019. 2. As a new argument, the applicant states, in effect: a. His discharge was inequitable because it was based on a Health Insurance Portability and Accountability Act (HIPPA) violation that he was guilty of. He received an Article 15 for his actions; his punishment included his loss of rank and pay, and time away from his family. He went through a low point in his life, where he was not happy with himself and the things he did, causing embarrassment for himself and others. b. Having a general discharge is hurting his career opportunities and is affecting his ability to provide for his kids. It is difficult to provide healthcare coverage for them because he cannot find a decent job with great pay and reasonable benefits. He believes employers look down on him and do not want to consider him because of his discharge. He feels like he is still being punished, even though he is no longer in the military. He feels an upgrade would open up doors and other ways for him to provide for his kids and himself. He would love to further his education and earn an associate’s degree in mortuary science. He plans to open his own funeral home one day and become successful doing so. An honorable discharge would allow him to use the G.I. Bill and use other Veterans benefits. His main priorities are his kids; an upgrade would be beneficial to them and him. 3. The applicant enlisted in the Regular Army on 8 August 2011. He served in Germany from 29 December 2011 to 15 November 2013 and attained the rank/grade of private first class (PFC)/E-3. 4. The applicant accepted non-judicial punishment (NJP) on 3 May 2013, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully disclosing Protected Health Information (PHI) without proper authorization, between on or about 1 February 2012 and 8 February 2013. His punishment included a reduction to rank/grade of private/E-1. 5. The applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of his commission of a serious offense. The commander cited the applicant's disclosing PHI without proper authorization; failing to report to duty; and disobeying orders from noncommissioned officers on divers occasions. 6. The applicant acknowledged receipt of the commander's notification memorandum on 6 September 2013. He consulted with counsel on 13 September 2013 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, 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 was not eligible for consideration of his case by an administrative separation board and personal appearance before administrative separation board. He submitted the following statement in his own behalf: If I were to be separated from the military I would continue my education so that I could make a better living for my family. I would earn my associates degree in Mortuary Science to become a mortician. In this profession I could always serve families in need and help through hard times. Without an education I wouldn’t be able to make an honest living without struggling or depending on my spouse to provide for the family. Being dual military, I wouldn’t want all the weight to fall on my wife and create a bigger burden than its becoming to be. If I was given an opportunity to keep my G.I. Bill I could still provide for my family and not worry about my income or giving my wife a hand when needed. I realize that I have done a horrible deed but now I find myself asking for a second chance. By putting my career back in my hands I feel as though this could be a great testimony I could teach to other junior enlisted Soldiers, NCOs, officers, and civilians about how I thought it was impossible to bounce back after a minor setback. If I were retain, I plan to join more organizations, further my education, going to boards, and attending different military schools to separate myself from my peers. Having my wife, and son as my motivation, I believe anything is possible and worth fighting for. [Signed] 7. The applicant's commander formally recommended his separation, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his commission of a serious offense. His intermediate commanders subsequently endorsed the applicant's separation action and they all recommended he receive a general discharge. 8. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge, under the provisions of Army Regulation 635-200, paragraph 14-12(c), by reason of his commission of a serious offense, and directed he be issued a general discharge. The separation authority also noted he would not be transferred to the Individual Ready Reserves (IRR) for mobilization purposes. 9. The applicant was discharged on 15 November 2013. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of "Misconduct (Serous Offense)." His service was characterized as under honorable conditions (general). 10. The applicant petitioned the ADRB for an upgrade of his discharge. The ADRB considered his petition and denied his request on 25 August 2015. 11. The applicant applied to the ABCMR for an upgrade of his general discharge; however, the Board denied his request on 23 May 2019. 12. The Board should consider the applicant's overall service record and provided 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, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, and the reason for his separation. The Board noted the facts presented above. 2. The Board noted that the applicant was discharged for Misconduct (Serous Offense) which usually is assigned a discharge characterization of under other than honorable conditions. The Board noted that the applicant’s command considered the applicants military record and his statement submitted to his commander is assigning him a general under honorable conditions discharge. The Board also noted that he had legal counsel, that he was informed of his rights, and acknowledged that he may encounter substantial prejudice in civilian life if he received a general under honorable conditions discharge. The Board found insufficient evidence of in-service mitigation to overcome this misconduct and there was insufficient 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, or basis for clemency. 3. The Board also noted that discharges are not changed solely to make Soldiers eligible for veterans or other benefits. 4. After reviewing the application and all supporting documents, the Board found that relief is 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. REFERENCES: 1. 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 provides that 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 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. 2. 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) AR20190012390 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012390 6 ABCMR Record of Proceedings (cont) AR20190012390 5