IN THE CASE OF: BOARD DATE: 2 February 2021 DOCKET NUMBER: AR20210005264 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Letter, 11 May 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. An honorable discharge will allow him to apply for benefits that are not currently offered to him under his current classification. He was discharged for receiving a DWI (driving while intoxicated) in March 2014. He has never denied any of his actions and accepted the punishment handed down to him. He made a terrible mistake that took his military career from him and he lives with that guilt every day. He is thankful that his lack of judgment did not lead to an automobile accident that could have caused irreplaceable damage. Even though he takes full responsibility for his actions, it is hard for him to swallow the fact that there are other Soldiers who have received a DWI that were not discharged. There are Soldiers that repeat bad behavior over and over again without much consequences. This goes to show that he was used by his particular chain of command as an example. Why is it that one Soldier gets discharged for a DWI and another soldier gets loss of rank, loss of pay, and extra duty? b. After being discharged, he completed drug and alcohol counseling at Evergreen Counseling in Dayton, OH. It has now been over six years since he received that DWI. He has made major strides in life, both as a person and a professional. He is seeking an upgrade to an honorable discharge that will allow him to access the education benefits for veterans. He currently holds a VA disability rating of 30%. Due to these disabilities, he has a hard time performing some tasks that are required by some professions. Being upgraded to honorable will allow him to use veteran benefits to seek education in a field that is not restricted by his disabilities. Unfortunately, he does not have any character witnesses or letters of recommendation to submit. He submitted the originals documents and letters back in 2014 when he was trying to save his military career. c. Other than this isolated incident, he was an exceptional Soldier. He was the Distinguished Honor Graduate in his AIT (advanced individual training) cycle. After AIT, he went on to South Korea to work in the Support Operations office for 6th Ordnance Battalion. From there he transitioned to Fort Bragg, NC, where he held positions as the Communications NCOIC (noncommissioned officer in charge) and the unit armorer as a Specialist (SPC)/E-4. In addition to those duties, he also was chosen as the commander's driver. 3. On 8 November 2011, he enlisted in the Regular Army for a term of 4 years, at the age of 22 years old. He enlisted for the military occupational specialty (MOS) 89A (Ammunition Stock Control and Accounting Specialist). 4. After completing his initial entry training, on 6 August 2012, he was assigned overseas to the Republic of Korea. 5. On 3 May 2013, he was assigned to Fort Bragg, NC. On 28 March 2014, he was issued a general officer memorandum of reprimand for driving under the influence of alcohol. It states on 16 March 2014, he was pulled over by a NC State Highway Patrol officer for failing to stop at a stop sign. Upon suspicion of intoxication, he was administered a breathalyzer test, which he had a blood alcohol content of .16% (percent). The applicant submitted statements on his own behalf: a. He submitted a self-authored statement in which he stated/explained, in pertinent part: (1) On 16 March 2014, he was pulled over for failing to stop at a stop sign and then taken into custody for suspicion of DWI. Upon arriving at the police station, he was given three different field sobriety tests followed by the breathalyzer. After receiving the results of the breathalyzer, the arresting officer, had him take the breathalyzer test again. The results of the second breathalyzer matched the results of the first, .16%. The officer then explained to him that the reason he had him tested the second time was because the results seemed high due to the fact he was not showing any symptoms of that level of intoxication. Having passed the field sobriety tests and no signs of slurred speech, the officer expected lower results. The second test was to check the accuracy of the results. (2) During his time spent in the unit, the command teams of both company and battalion levels have stressed safety and standards. He cannot justify the actions that he took that night. Even before joining the Army, he was raised to be the one that makes the right decision and to be the responsible one. So not only had he let himself, his battle buddies and chain of command down, he also let his family down. Even though he had not been charged with anything yet, just the fact that he was being accused and tried is enough to ruin his image and reputation. He was well aware that driving under the influence was an irresponsible act. Many lives have been taken due to drunk drivers and he was so thankful that nobody was physically injured because of his poor judgment. The applicant went on to explain his accomplishments while in the service and his future goals. b. Sergeant (SGT) D_, the applicant's immediate supervisor, submitted a statement on behalf of the applicant. He attested to the applicant's good duty performance and professionalism. He stated he had full confidence in the applicant's ability to bounce back from the incident. The incident had not gotten the applicant down and he continued to apply the same amount of professionalism and positive attitude to any task he was given in lieu of the circumstances. He knew the applicant regretted the poor decision that he made. c. Staff Sergeant (SSG) G_, the applicant's platoon sergeant, made a statement attesting to the applicant's strong character and his outstanding duty performance as the unit armorer and communications NCOIC. d. In the immediate commander's recommendation, he stated, in pertinent part: (1) the applicant's behavior since the night of the incident has also alluded to his tremendous desire to seek retribution. When they discussed his arrest with the company, rather than be dismissive of the incident, he quickly assumed responsibility for his actions and spearheaded the discussion in an attempt to ensure that not one of his comrades would ever duplicate his mistake. He repeated this at the very first battalion formation after his incident and has since continued to provide the same testimonial throughout the formation. (2) His filing recommendation for the reprimand was not a responsibility which he took lightly. Based on the applicant's previous performance and behavior along with his willingness to be forthcoming with his actions on the night of his arrest, he believed that the applicant was being honest in his recount of that night's events. While he understood that it was highly unlikely that an issue with the machine's calibration or accuracy would be determined to be the cause of his high blood alcohol content reading, he was not certain beyond a reasonable doubt. He recommended filing the reprimand locally or withhold the final decision for its filing until the legal process was complete (Note. Court date was scheduled for 22 April 2014 –– results unavailable). e. The battalion commander concurred with the immediate commander to file the reprimand locally. The brigade commander did not concur and recommended filing the reprimand in the applicant's Official Military Personnel File (OMPF). The filing authority filed the reprimand in the applicant's Army Military Human Resource Record (AMHRR), which includes the OMPF. 6. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, paragraph 14-12c, for commission of a serious offense. The reason for the proposed action was on or about 16 March 2014, he operated a motor vehicle with a blood alcohol content in excess of the legal limit. The commander indicated that the mental status evaluation and medical examination were attached (his record is void of both the mental status evaluation and medical examination). 7. The record is void of an election of rights; however, the applicant provided a memorandum, subject: Request for Retention on Active Duty. He described his good performance and indicated that the chain of command described his work ethic and performance as exemplary. He requested that his separation be suspended. He felt he was and would continue to be a great Soldier if given a second chance. 8. The immediate commander recommended a general under honorable conditions discharge; however, that the separation be suspended for a period of 12 months. The battalion commander recommended immediate separation with a general under honorable conditions discharge and on 25 July 2014, the appropriate separation authority approved the separation and directed he receive a general under honorable conditions discharge. 9. On 15 August 2014, the applicant was discharged under AR 635-200, paragraph 14- 12c, with an under honorable conditions (general) discharge. He completed 2 years, 9 months, 8 days of his 4-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized: * Army Achievement Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Army Service Ribbon 10. On 28 April 2015, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge. The ADRB determined he was properly and equitably discharged. 11. The applicant provided a Department of Veterans Affairs (VA) Letter, 11 May 2020, shows the VA determined he had a combined service-connected disability of 30%. 12. The applicant requests an upgrade. He states an honorable discharge will allow him to apply for benefits that are not currently offered to him under his current classification. He was discharged for receiving a DWI (driving while intoxicated) in March 2014. He has never denied any of his actions and accepted the punishment handed down to him. He made a terrible mistake that took his military career from him and he lives with that guilt every day. He is thankful that his lack of judgment did not lead to an automobile accident that could have caused irreplaceable damage. a. His record shows he enlisted at the age of 22 years old and he received a general officer letter of reprimand for driving while under the influence of alcohol. He completed 2 years, 9 months, 8 days of his 4-year contractual obligation. b. Although his record contains a separation packet that shows a mental status evaluation and medical examination were attached, they are not available in the record. AR 635-200 requires Soldiers to receive both a medical examination and mental status evaluation when being processed for separation under chapter 14. c. AR 635-200, Chapter 14 (Misconduct), paragraph 14-12c, was a separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM). The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. d. According to the MCM, Article 111, Uniform Code of Military Justice –– (Drunken or reckless operation of vehicle, aircraft, or vessel) included a punitive discharge. 13. The applicant requests an upgrade so that he may receive benefits. 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 and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. 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 acceptance of responsibility, his record of service, the frequency and nature of the misconduct, issuance of a reprimand, the contents of his separation packet, the chain of command recommendations and the reason for his separation. One member found sufficient evidence to recommend relief as a matter of clemency. The Board majority did not find sufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant did not provide sufficient evidence of post-service achievements or letters of reference to support a clemency determination by the Board. Based on a preponderance of evidence, the Board majority determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :XXX :XXX 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 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. AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), in effect at the time, prescribed the policy for enlisted separations. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. 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. Both honorable and general discharges entitle a Soldier to full Federal rights and benefits provided by law. d. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. e. A medical examination is required when a Soldier is being processed for discharge under paragraph 14-12c. In addition to a medical examination, a mental status evaluation conducted by a psychologist, or master-level, licensed clinical social worker, is required. 3. Per Manual for Courts-Martial, Article 111, Uniform Code of Military Justice –– (Drunken or reckless operation of vehicle, aircraft, or vessel) included a punitive discharge. 4. 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 based on equity or relief from injustice. 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) AR20210005264 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005264 8 ABCMR Record of Proceedings (cont) AR20210005264 7