IN THE CASE OF: BOARD DATE: 10 February 2021 DOCKET NUMBER: AR20190012525 APPLICANT REQUESTS: The applicant requests the upgrade of his under honorable (general) conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Restoration of Rights from Kentucky * letter from employee 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, on his application and in his self-authored letter states: a. He has bettered his life for his family and himself. He is looking to receive an honorable status to continue furthering bettering himself for himself and his family. He asks the Board to consider his application seriously. He's looking to continue to move forward in his life. He is requesting an upgrade of his discharge so he can get a VA loan for his house. b. His asking for a review of his discharge in hopes to further his life and family. Although he can't make a personal appearance before the Board, he would like the Board to know he's come a very long way since he left the Army in 2002. c. From 2002 to 2017, it was a rough journey for him and his family. He lost his way in 2002 and was discharged with an under honorable (general) discharge. He wanted to write to the Board and personally let them know he had to overcome a lot of problems in his life starting with his bad police record, his bad attitude, and hanging out with the wrong crowds. d. It took him from 2006 to 2017 to correct his wrongs. He started with the courthouse in Boone, Kentucky. He was told he would never be able to receive his right back. In 2017 HB41 [sic] passed and with the help of his lawyers and more phone calls to senators and governors he was able to achieve the impossible. He kept his head up and stayed strong. Today he has a credit score, two cars, his rights that were vacated are now expunged and sealed. e. He has his eyes set on a house to support his family and try to help out anyone in need. He just wishes to be able to put a house over his wife and four kids' heads. He's been calling the Department of Veterans Affairs (VA), senators, and certain groups to try and get a better home loan through the VA. f. He knows there is a program in place for veterans in need, like homeless people, and people with a 620 credit score or better. The VA seemed to leave Veterans like him who are stuck at their families' home and food stamps [out]. g. There needs to be a better program where all veterans can achieve the goal of purchasing a home. When veterans stand together they are strong. He hopes the Board can help in his journey and his dream to be in a house and not inside an apartment complex with drugs and horrible schools. h. He asks the Board to help everyone achieve the dreams he's trying to dream. Leave no man or woman behind. He knows he failed in 2002 and he's very sorry. He asks the Board to accept his apology and help him and his family achieve greatness. i. He's worked so hard since 2002 to change his life. He asks the Board not to throw his letter away and asks the Board to write back to him and his family are waiting to hear back from the Board. 3. The applicant provides the following documents for the Board's consideration: a. A certificate from the Commonwealth of Kentucky which shows the applicant was granted the right to vote and hold public office denied to him by judgment of conviction and prior conviction. The order only restored the right to vote and hold public office and did not restore any other civil right including but not limited to the right receive, possess or transport in commerce a firearm or to serve on a jury. b. A letter from his employee, dated 3 June 2019, stating the applicant was employed by him with a start date of 20 May 2019. 4. On 27 March 2000, the applicant enlisted into the US Army Reserve (USAR), at the age of 19 years old, for a period of 8 years. On 11 August 2000, he was discharged from the USAR with an uncharacterized discharge. 5. On 11 September 2000, the applicant enlisted in the USAR Delayed Entry Program, at the age of 19 years old, for a period of 8 years. On 21 September 2000, he was discharged from the USAR DEP and entered the active Army for a period of 3 years. 6. During his time of service, the applicant received 20 counseling statements, which show he was counseled on: * 21 May 2001, for his first offense of failure to repair, the applicant agreed with the counseling * 4 June 2001, for his second offense of failure to repair, the applicant disagreed with the counseling stating he didn't agree with the counselor's corrective training * 7 June 2001, for his third offense of failure to repair, the applicant agreed with the counseling * 12 June 2001, for his fourth offense of failure to repair, it was recommended the applicant receive nonjudicial punishment (NJP) for his offense, the applicant agreed with the counseling * 6 Aug 2001, for his fifth offense of failure to repair, the applicant agreed with the counseling * 10 October 2001, for his duty performance for the month of September, the applicant was on leave and did not sign * 7 January 2002, for his duty performance the month of December, the applicant was on leave, and did not sign * 1 February 2002, for not being at his appointed place of duty on 28 January 2002, the applicant disagreed stating the counselor told him to come in and he did what he was told * 1 February 2002, for not being at his appointed place of duty on 1 February 2002, he agreed with the counseling * 11 February 2002, for not being appointed at his place of duty, the counselor recommended NJP, the applicant agreed with the counseling * 4 March 2002, for not being at his appointed place of duty, he agreed with the counseling * 11 March 2002, regarding his duty performance for the month of February which was satisfactory, the applicant agreed with the counseling * 19 March 2002, for his privately owned vehicle failing safety inspection, the applicant agreed with the counseling * 19 March 2002, for failing to be at his appointed place of duty, the counselor recommended NJP, the applicant agreed with the counseling * 6 May 2002, discuss duty performance for the month of February [sic], which was unsatisfactory, the applicant agreed with the counseling * 10 May 2002, for failing to be at his appointed place of duty, the applicant agreed with the counseling * 20 May 2002, for failing to be at his appointed place of duty, the applicant agreed with the counseling * 20 May 2002, for failing to report back to work after lunch, the applicant disagreed with the counseling stating he fell asleep in his room he was woken up two hours later * 12 August 2002, for driving while his privileges were revoked, he was recommended for NJP, he disagreed with the counseling stating he had gone in front of the Division Commander and was told this was his warning * 15 August 2002, for having a positive urinalysis (UA), he was recommended for NJP, the applicant was agreed with the counseling 7. The applicant accepted NJP under Article 15, Uniform Code of Military Justice (UCMJ) on: a. 17 July 2001, summarized, for failure to report to physical training formation on for occasions. His punishment was 14 days' extra duty. b. On 19 March 2002, company grade for, failing to go to his appointed place of duty on four occasions. The punishment he received was not listed on the NJP. c. On 11 July 2002, company grade for, six occasions of failing to go to his appointed place of duty and one willfully disobeying an order. His punishment included reduction to the grade of Private/E-1, forfeiture of $257 for one month, and 14 days' extra duty. He did not appeal the punishment. 8. On 26 February 2002, the applicant received a flag for adverse action. 9. On 15 May 2002, the applicant's privilege to operate a motor vehicle in had been suspended and it was unlawful for him to operate a motor vehicle in the. On 15 July 2002, his installation driving privileges were suspended. 10. On 17 July 2002, a memorandum for record was completed, stating the applicant would be given a command directed UA because he had been driving with a suspended license. When he rolled down the window to hand the security guard his military identification, the military police smelled the odor of marijuana. A search of the car failed to produce a controlled substance or drug paraphernalia. The applicant failed a field sobriety test. Based on the odor of marijuana, the command directed a UA. On 30 July 2002, it was determined the applicant was positive for the use of marijuana. 11. On 27 August 2002, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). His performance was related as excellent and his behavior as unsatisfactory. The commander suspected the applicant had an alcohol or other drug problem. 12. On 12 November 2002, the applicant's commander advised him, via memorandum, that he was recommending the applicant for discharge under paragraph 14-12c (Commission of a Serious Offense), Army Regulation 625-200 (Personnel Separations – Enlisted Personnel); the commander's stated reason was the applicant's use of marijuana, disrespect toward a superior commissioned officer, and failure to report on several occasions. On 12 November 2002, the applicant acknowledged receipt of the Memorandum of Notification. 13. On 12 November 2002, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He requested counsel and elected not to submit statements in his own behalf. 14. The applicant's chain of command recommended approval of the request for discharge with an under honorable conditions (general) discharge, and recommended waiver of further rehabilitation. On 12 November 2002, the packet was found to be legally sufficient and the appropriate separation authority approved the separation, waived rehabilitative requirements, and directed discharge with an under honorable conditions (general) discharge. 15. On 26 November 2002, the applicant was discharged accordingly. He had completed 2 years, 2 months, and 6 days of his 3-year contractual obligation. He was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. 16. On 23 May 2011 and 7 June 2011, the Army Discharge Review Board considered the applicant's request for an upgraded discharge. Both times, they determined the applicant had been properly and equitably discharged and denied his request. 17. A review of his record reveals administrative irregularity in the proper retention of his military records, specifically, his record is void of a medical or mental health examination prior to his separation from the Army. 18. By regulation during the applicant's era of service, commanders were to initiate separation action against Soldiers who had committed a serious military or civilian offense, and for which the Uniform Code of Military Justice (UCMJ) authorized a punitive discharge for the same or similar offense. A punitive discharge was among the authorized maximum punishments for violations of Article 112a (Wrongful Use, Possession, Manufacture or Introduction of Controlled Substances). Additionally, per paragraph 14-12c (2), abuse of illegal drugs was deemed serious misconduct. Commanders could use their discretion when contemplating the separation of a first- time offender below the grade of E-5; however, the regulation mandated the initiation of separation action for all second-time offenders. 19. The ABCMR does not 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, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. He was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders were required to initiate separation action when they determined a Soldier had committed serious misconduct, and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. Per subparagraph (2), abuse of illegal drugs was deemed serious misconduct. The separation of first-time offenders below the grade of E-5 was at the commander's discretion; the regulation required the initiation of separation action for all second-time offenders. 3. The Manual for Courts-Martial, United States, Appendix 12 (Maximum Punishments Chart), in effect at the time, showed punitive discharges as available maximum punishments for violations of Article 112a (Wrongful Use of Marijuana), UCMJ. 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 (to include that provided by an applicant), 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) AR20190012525 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1