IN THE CASE OF: BOARD DATE: 29 October 2021 DOCKET NUMBER: AR20210011332 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he requests that his status of general under honorable conditions be changed to honorable conditions. At the time of his discharge he was not offered any other alternatives like counseling or the opportunity to change units or even transfer to another post. Even though he only served for 1 year and 3 months, he still did more than most others and feels that he earned honorable status. 3. On 4 January 1996, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty. On or about 8 May 1996, he was assigned to his unit at Fort Carson, Colorado. 4. His record shows he was counseled on multiple occasions for acts of indiscipline and misconduct. In pertinent part, he was counseled for: * failing to report to his place of duty on several occasions * failure to obey a lawful order on several occasions * missing formations on multiple occasions * failing to follow instructions on multiple occasions * writing bad checks and failing to pay his debts * failing to shave * being absent without leave (AWOL) 5. On 25 March 1997, he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty. His punishment consisted of reduction to pay grade E-2 and extra duty for 14 days. 6. His record contained Personnel Action forms that show he was AWOL from on or about 6 to 17 May 1997. 7. On 20 May 1997, the applicant was medically cleared for separation action. A mental status evaluation also psychiatrically cleared him for separation action deemed appropriate by his chain of command. 8. On or about 28 May 1997, his chain of command approved and imposed a Bar to Reenlistment Certificate against him. 9. On 1 June 1997, his commander notified him that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12a, for minor disciplinary infractions. The reasons for the proposed action were based on the applicant’s failure to obey direct orders, he had been AWOL, his failure to report, and writing bad checks. The commander also informed the applicant of his rights. a. Legal counsel advised the applicant of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights. The applicant personally made the choices indicated in the statement. b. The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than a general discharge under honorable conditions. He elected not to submit statements in his own behalf. c. His commander formally recommended him for discharge based on his misconduct and minor disciplinary infractions. The commander also stated, it was not considered feasible or appropriate to accomplish other disposition because rehabilitation would not be in the best interests of the Army as it would not produce a quality soldier. d. The chain of command recommended approval of the separation action. e. On 30 June 1997, the separation authority approved the separation action and directed the applicant be issued a general discharge. The separation authority also indicated the applicant would not be transferred to the Individual Ready Reserve, and the separation authority’s endorsement shows the separation action was found to be legally sufficient. 10. On 9 July 1997, the applicant was discharged from the Army. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, paragraph 14-12a, for misconduct. His character of service was listed as “under honorable conditions (general),” and he completed 1 year, 5 months, and 9 days of net active service with lost time from 6 to 17 May 1997. 11. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, and convictions by civil authorities. 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 appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 12. The Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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, his bar to reenlistment, 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 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, and convictions by civil authorities. 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 appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 3. 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. a. 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. b. 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, 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) AR20210011332 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1