IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20210015824 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge and his narrative reason for separation be changed to an unspecified, but presumably more favorable reason. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Forms 4856 (Developmental Counseling Form) (four) * DA Forms 2823 (Sworn Statement) (two) * Temporary Orders issued by District Court, dated 2 February 2007 * Final Order of Divorce, dated 3 June 2008 * Custody and Visitation Order, dated 22 September 2015 * Confidential Psychological Report, dated 18 June 2017 * College Transcript, dated 14 May 2019 * Certificate issued by the American Board of Pathology [not the applicant] 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 a pretty good Soldier, but was going through some very challenging times in his home life. a. His wife was addicted to prescription drugs while pregnant with his unborn child. His mother-in-law lived with him and his wife and enabled his wife with the drugs. In addition to having financial debt, he was involved in a physical altercation with his mother-in-law which resulted in him having to move out of the house and live on base. He was advised by legal counsel to delay filing for divorce until after his child was born. His wife was involved in an automobile accident and her injuries required their son to be delivered prematurely. He pled guilty when he appeared in court for the charge of assaulting his mother-in-law. b. While awaiting the next steps regarding his trial results, his noncommissioned officers (NCOs) presented several DA Forms 4856 and DA Forms 2823, mostly dated on 17 or 19 July 2006. He did not know what was going on, but was told to initial, date, and sign the documents. c. His parents came to visit, and he decided to give his child to them to care for. His parents took his son home with them. His wife and mother-in-law were not pleased with this decision and were arrested that day for assaulting an emergency worker. His wife was then forced to file for divorce and an emergency custody hearing. He and his parents obtained legal counsel and ultimately, due to the applicant still being in the military, the judge awarded temporary custody to his parents. d. The applicant moved to following his separation from the Army. He was charged with driving while under the influence so when he and his wife divorced his parents retained custody of his son. His ex-wife died from a prescription drug overdose in 2009. He was able to move beyond some things that haunted him and was awarded a degree in Business Administration. He has had several custody battles with his parents over his son and now has joint physical and legal custody of him. He and his new wife have been together for 12 years and married for five. 3. On 23 March 2005, the applicant enlisted in the Regular Army for a period of 4 years and 18 weeks. Upon completion of initial entry training, he was assigned to a unit at Fort Hood, Texas. 4. DA Forms 4856 show the applicant was counseled for several disciplinary infractions. He was repeatedly advised that incidents of this nature could result in punishment under the Uniform Code of Military Justice (UCMJ) or that administrative separation action could be initiated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The offenses for which he was counseled were as follows: * controlling his temper * keeping his supervisors informed * failing to report at the appointed place of duty at the time prescribed * failing to obey an order or regulation * lying to an NCO * false or unauthorized pass offense * dereliction of duty 5. Two DA Forms 4187 (Personnel Action) show the applicant was confined by civil authorities from 30 May until 1 June 2006. 6. Two DA Forms 2823, rendered on 19 July 2006, show two witnesses attested that the applicant was disrespectful in language and behavior toward a superior NCO. 7. On 27 July 2006, the applicant's troop commander was informed the applicant had failed to report for scheduled Army Drug and Alcohol Prevention Training. 8. On 16 August 2006, the applicant's troop First Sergeant entered a written agreement with the applicant and a Substance Abuse Rehabilitation Department counselor for the applicant's alcohol or illicit drug abuse rehabilitation plan. 9. On 20 September 2006, the applicant underwent a mental status evaluation and was psychologically cleared for any administrative action deemed appropriate by command. 10. On 28 September 2006, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. The reasons for his proposed action were for assault with bodily injury of a family member and multiple failures to report. He informed the applicant he was recommending that he receive an under honorable conditions (general) characterization of service. The applicant acknowledged receipt of the notification memorandum on the same date. 11. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him, the rights available to him, and 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 to waive his rights to consideration of his case by an administrative separation board, consulting counsel, and to submit a statement in his own behalf. 12. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of a pattern of misconduct and that he be discharged with a service characterization of General, under honorable conditions. 13. On 28 September 2006, he separation authority approved the request and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. He further directed that the applicant would be discharged with a service characterization of under honorable conditions (general). 14. Accordingly, the applicant was discharged on 19 October 2006. 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 14-12b, by reason of pattern of misconduct. His service was characterized as under honorable conditions (general). He was credited with 1 year, 6 months and 26 days of net active service this period. 15. The applicant provides the following documents rendered after his discharge from the Army. These documents are available in their entirety for the Board's consideration. a. Temporary Orders issued by District Court, which show the applicant, his wife at the time, and his parents were appointed as Temporary Joint Managing Conservators of the applicant's son pending final legal disposition. b. A Final Order of Divorce issued by Circuit Court of, 3 June 2008, which shows the applicant's divorce was approved and custody of his son was granted to the applicant's parents. c. A Custody and Visitation Order issued by Circuit Court, 22 September 2015, which shows the applicant appealed to Custody and Visitation Order and was awarded joint custody of his son along with the applicant's parents. d. A Confidential Psychological Report rendered by Counseling Services on 18 June 2017. e. A transcript issued by Old Dominion University, which shows the applicant was conferred a Bachelor of Science degree in Business Administration on 11 May 2019. 16. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 17. The available evidence shows the applicant had a pattern of misconduct and committed multiple offenses and was afforded several opportunities to improve his conduct by his leaders. He was discharged prior to completion of his enlistment contract. In reaching its determination, the Board can consider the applicant's petition, his service record, and published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the short term of service completed with a pattern of misconduct, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 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 states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 merited by the Soldier’s overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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) AR20210015824 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1