ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 March 2021 DOCKET NUMBER: AR20200000222 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 or Dismissal from the Armed Forces of the United States), dated 30 June 2019 * Department of Veterans Affairs (VA) Residential Addiction Treatment and After Care Program Certificate, completed on 20 September 2019 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. The applicant states, in effect: a. He has learned from his failures, has sought medical and mental professional help, and wishes to upgrade his discharge. He wishes to better serve his country by helping others seek help, giving them a "hand up," and being an example to prove they can rise out of the ashes. He also wishes to bring honor to his family and loved ones, to be buried with a 21 gun salute and taps, to give him some self-worth and esteem. He has enrolled himself on his own free will to be a better and more productive person in society. An honorable discharge would open more doors for jobs, education, training, and eligibility for the Montgomery GI Bill. b. He has applied to college and cognitive courses to improve himself, not just for himself but for his family, God, and country. He has changed his values and beliefs and has taken responsibility for his actions. He is no longer the same person. He has paid his debt, is picking up the pieces of his life, and is trying to repair the damage he caused. With God all things are possible, he has approximately 50 more completion certificates for anger and stress management and other religious courses if needed. 1 3. The applicant enlisted in the Regular Army on 11 June 2002. He reenlisted in the Regular Army on 1 April 2005. He attained the rank/grade of specialist (SPC)/E-4 and served in the following locations: * Turkey, from 17 February 2003 through 16 April 2003 * Iraq, from 17 April 2003 through 18 May 2003 * Bosnia, from 19 May 2003 through 19 June 2003 * Kosovo, from 20 June 2003 through 9 September 2003 * Iraq, from 9 March 2004 through 10 September 2004 * Iraq, from 24 November 2004 through 2 July 2005 4. The applicant was counseled on several occasions. The DA Forms 4856 (Developmental Counseling Form) show he was counseled on the following dates for various reasons, including but not limited to: a. On 20 May 2003, for taking a government rented van without prior authorization to Wurzburg and wrecking it on 18 May 2003; compromising the movement of the Group commander and his staff; and for failing to report to morning formation on 20 May 2003. b. On 22 May 2003, for failing to return from a transport mission to Stuttgart, after being told to drop personnel off and report back to his place of duty. He stayed in Stuttgart and was observed in a bar drinking, and did not report back to his duty location for 2.5 hours. c. On 23 May 2003, for failing to report to the physical training (PT) formation, and for taking a government rental vehicle and the mission phone, without authorization, to stay at a friend’s house in Stuttgart. d. On 23 September 2003, for failing the Army Physical Fitness Test (APFT) on 22 September 2003. 5. The applicant accepted non-judicial punishment (NJP) on 24 September 2003, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for two specifications of failing to go at the time prescribed to his appointed place of duty, on or about 29 August 2003; and through neglect, missing movement to Kosovo, on or about 2 July 2003. 6. The applicant was again counseled on 17 December 2003. The DA Form 4856 shows he was counseled for an alcohol related incident, which resulted in him being hospitalized with a concussion and being considered drunk on duty after the incident. The form also noted he had already self-referred to the Alcohol and Drug Abuse Prevention and Control Program (ADACP) and was considered a track one failure. 7. The applicant again accepted NJP on 6 January 2004, under the provisions of Article 15 of the UCMJ, for his wrongful previous overindulgence in intoxication liquor or drugs that incapacitated him and prevented the proper performance of his duties, on or about 17 December 2003. 8. The applicants’ records contain an Operation Report – 3 (OPREP-3), dated 5 August 2005, which shows he was arrested for driving under the influence (DUI) on 3 August 2005, while on leave in Sheridan, Oregon. The report further shows he was released from custody and would return to Fort Carson, Colorado on 7 August 2005. 9. The applicant was counseled on 8 August 2005. The relevant DA Form 4856 shows he was counseled for receiving the DUI, as well as a motor vehicle citation for passing in a no passing zone on 3 August 2005. He was further counseled on the potential effects of his actions and the possibility of early separation. 10. The applicant was command referred to ADACP on 8 August 2005. The relevant DA Form 8003 (ADACP Enrollment) shows his referral was due to his arrest on 3 August 2005 for DUI and two previous Articles 15 for alcohol related problems. 11. The applicant underwent a mental status evaluation on 18 August 2005. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he received the mental status evaluations for a chapter evaluation. The report further shows he had no psychiatric disease or defect that warranted disposition through medical channels; he was mentally responsible; could distinguish right from wrong; was able to adhere to the right; and had the mental capacity to understand and participate in board proceedings. He also met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3, and was cleared for any administrative action deemed appropriate by command. 12. The applicant underwent a separation evaluation on 22 August 2005 and was found qualified for service. 13. The applicant's commander notified the applicant on 7 September 2005 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense. The commander noted the applicant’s DUI, missing movement, and being incapacitated to perform his military duties as reason for his request. The applicant acknowledged receipt of the notification memorandum the same day. 14. The applicant consulted with counsel 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 waived his rights for consideration of his case by an administrative separation board and personal appearance before administrative separation board. His election to submit a statement on his own behalf is not noted, and no statement is available for review. 15. The applicant's commander formally recommended the applicant's separation on 7 September 2005, under the provisions of Army Regulation 635-200, paragraph 14-12c. He again listed the aforementioned reasons and recommended the applicant receive a general discharge. 16. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 21 September 2005, under the provisions of Army Regulation 635-200, paragraph 14-12(c), by reason of his commission of a serious offense, and directed that he be issued a general discharge. The separation authority also noted he would not be transferred to the Individual Ready Reserve (IRR). 17. The applicant was discharged on 4 October 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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). 18. The applicant petitioned the ADRB for an upgrade of his discharge. The ADRB considered his petition and denied his request on 5 January 2011. 19. The applicant provides a VA Residential Addiction Treatment and After Care Program Certificate. 20. The Board should consider the applicant's overall service record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) indicates a mental status examination on 18 Aug 2005. He was found to meet retention standards IAW AR 40-501. On 22 and 24 Aug 2005, he completed his separation physical meeting retention standards. A review of JLV indicates he has been diagnosed and treated for PTSD. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition during his military service. He met retention standards at the time of his discharge. Under liberal guidance, PTSD is mitigating for AWOL and DUI. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief was not warranted. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration and clemency in consideration of discharge upgrade requests. The Board reviewed the medical advisory and noted that the applicant's period of AWOL and DUI are mitigating factors under liberal guidance. However, based on the totality of the applicant's misconduct not mitigated by a diagnosis of PTSD, the Board found that his Under Honorable Conditions (General) characterization of service proper and equitable. 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 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. 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. 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//