IN THE CASE OF: BOARD DATE: 12 November 2020 DOCKET NUMBER: AR20200002033 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 November 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, he was given a general discharge due to his then wife bouncing checks and not paying bills that she was supposed to pay with his paycheck. They were undergoing marital issues at the time and she intended to get him in trouble by bouncing checks and falling behind on bills. At the time, they had an agreement that he would work and she would take care of the finances. Before he knew it, she had bounced roughly $7,000 worth of checks at AAFES alone and he was then given an Article 15 and discharged. He feels that he has been unjustly punished all these years due to the actions of his wife at the time. 3. The applicant enlisted in the Regular Army on 14 August 1996. 4. The applicant accepted non-judicial punishment (NJP) on 29 March 2000, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * willfully damaging military property by driving his privately owned vehicle in a reckless manner, on the Larson Barracks Golf Course, on or about 17 February 2000 * physically controlling a passenger vehicle while drunk, on or about 17 February 2000 * making and uttering seven checks and failing to maintain sufficient funds for payment of such checks, between on or about 21 December 1999 and 5 January 2000 5. The applicant’s record contains a memorandum for record (MFR) from his first sergeant (1SG), dated 2 May 2000, showing in effect that he was pending discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14; however, his discharge was on hold pending adjudication of his physical evaluation board (PEB) for asthma. The 1SG noted the PEB recommended a temporary retirement with 30 percent disability. The 1SG also noted the applicant and his wife had written over $7500 worth of bad checks while he was awaiting the PEB results. He was given every opportunity to correct these deficiencies, including budget counseling; however, he continued to write bad checks. 6. The applicant's PEB Proceedings are not available for review. 7. The applicant’s service record also contains an MFR from his commander, dated 2 May 2000, showing the following: On or about 2 May 00, [the applicant] was counseled for insufficient funds payable to AAFES in the total sum of $3000. The counseling informed [the applicant] that his continued unsatisfactory performance and/or misconduct could result in UCMJ action, or his being administratively separated from the U.S. Army under the provisions of Chapter 14, AR 635-200. Separation under chapters 14, AR 635-200 could result in him receiving an Honorable, General, or Under Other Than Honorable Discharge. Discharges under General or Under Other Than Honorable conditions could prejudice him in civilian life as they carry a stigma of less than Honorable service. [The applicant] may have trouble getting a job as a result. Additionally, some or all of the benefits normally earned from his military service will be denied if he receives less than an Honorable discharge, to include GI Bill benefits. There is no guarantee that a General or Under Other Than Honorable discharge will be upgraded at a later date. On or about 17 Feb 00, [the applicant], was previously counseled for his actions regarding insufficient funds payable to his landlord. The chain of command initiated a Field Grade Article 15 and included this incident within a Chapter 14-12b initiated against him. The above soldier member (SM) was informed to make arrangements to repay his debt in the form of an allotment. In my judgment, it is neither feasible nor appropriate to expend any further time or effort towards rehabilitating this Soldier to an acceptable level of performance and conduct. I have considered this Soldiers' past record, present performance and potential for future service and advancement. I have reached the conclusion that disposition by any other means would not be in the best interest of the United States Army. IAW AR 635-200, paragraph 1-18(d), I recommend any further requirements for rehabilitating the Solider be waived. 8. The applicant’s 1SG submitted a second MFR, dated 18 September 2000, showing the following: [The applicant] was previously recommended for discharge in accordance with AR 635-200, Chapter 14-12(b), Patterns of Misconduct. The discharge was disapproved due to his pending medical evaluation board results based on a diagnosis of asthma. Since that time, he has been to another physician, Dr. S_ at the 6th Combat Support Hospital, phone number xxx-xxxx. Dr. S_ informed me that [the applicant] is no longer on any medication, and all of the test results showed normal functioning of the pulmonary system. Dr. S_ is not recommending that [the applicant] be medically discharged. I am re-submitting the request for discharge under AR 635-200, Chapter 14-12(b), Patterns of Misconduct based upon no change in the soldier's performance. 9. The applicant’s commander submitted a second MFR, dated 19 September 2000, showing the following: I fully recommend that we continue with the Chapter Separation of [the applicant]. My observations as company commander are that this is a poor Soldier who consistently requires constant attention from his chain of command. When I first took command, [the applicant] was in the process of moving from off post housing to post housing due to his incredible debt due to a German landlord. This pattern of indebtedness has continued during the company's deployment to Kosovo and throughout the company's return. [The applicant] and his wife have both attended the budget financing classes and received many counseling concerning his financial situation. However, as seen in the counseling’s, his situation has not improved but even continued to get worse. Upon preparing the unit for deployment to Kosovo, I learned that [the applicant] would be one of my non-deployables due to a P3 profile for asthma which would lead to a medical evaluation board. However, on one of the days before deployment, the unit held a company basketball competition to relax the Soldiers and build morale for the unit. Upon arriving at the game, I noticed [the applicant] sprinting the full court while playing. When I questioned him about his profile, his answer was that his profile allowed him to run at his own pace. Now, being that [the applicant] has never participated in a company run, I did not allow him to play this up tempo basketball game. Just recently, [the applicant's] medical packet was reviewed at Walter Reed Hospital. He has been sent back for diagnosis and has been cleared of having asthma. The doctor has also recommended that the evaluation board be cleared. It is a very difficult perception for the Soldiers who did their duty deploying in support of Kosovo operations to see a Soldier who stayed back for a medical reason to be later cleared of any ailment. [The applicant] has been a focus for every commander throughout my time in Bravo Company: myself, the B CO 1SG, the B CO Rear Detachment Commander (while unit was in Kosovo), the HHC Commander and HHC 1SG. His patterns have continued throughout the deployment and upon our return. I strongly recommend that we proceed with this process as this Soldier has definitely had a negative effect on the platoon/company morale and the company mission. These effects have taken an excessive amount of time from the chain of command which could have been used more to mentor and develop his fellow Soldiers who continue to "do the right thing". 10. The applicant's commander notified the applicant of his intent to initiate separation actions against the applicant under the provisions of Army Regulation 635-200, paragraph 14-12b, and the rights available to him. The commander cited the applicant's receipt of a field grade Article 15 for drunk driving; damaging government property; and indebtedness, as reasons for his request. The applicant acknowledged receipt of the commander's notification memorandum. 11. The applicant declined counsel and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, 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 elected not to submit a statement in his own behalf. 12. The applicant's commander formally recommended the applicant's separation prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of his patterns of misconduct. He cited the aforementioned reasons for his recommendation and recommended he not be transferred to the Individual Ready Reserve (IRR). 13. The applicant's intermediate commander recommended approval of his separation, under the provisions of Army Regulation 635-200, paragraph 14-12b, for his patterns of misconduct. He also recommended the applicant receive a general discharge, and that he not be transferred to the IRR. 14. The Kitzingen Law Center, Staff Judge Advocate reviewed the applicant's administrative separation action and found it legally sufficient to discharge him in accordance with Army Regulation 635-200, Chapter 14, paragraph 14-12b. 15. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's discharge on 27 October 2000, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct, and directed that he be issued a DD Form 257A (General Discharge Certificate), and that he not be transferred to the IRR. 16. The applicant was discharged on 16 November 2000. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct." His service was characterized as under honorable conditions (general). 17. The applicant applied to the Army Discharge Review Board for an upgrade of his general discharge; however, the Board denied his request on 30 September 2009. 18. The Board should consider the applicant’s complete service record, and post service accomplishments in support of his request, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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. 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 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// ABCMR Record of Proceedings (cont) AR20200002033 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002033 7 ABCMR Record of Proceedings (cont) AR20200002033 6