IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210016797 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Army Discharge Review Board (ADRB) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states he is asking for this upgrade so he can see a medical provider and receive treatment for an injury he incurred while on active duty; he damaged the thumb on his right (dominant) hand. He recognizes his conduct in the Army was "not honorable," and he wishes he had conducted himself in a military manner. He failed multiple drug tests, and this culminated in his adverse separation, but, since his discharge, he has not failed one drug test and he is willing to submit copies of those tests to the Board as proof (emphasis added by applicant). 2. The applicant's service records show: a. On 28 March 2016, the applicant enlisted into the Regular Army for 3 years and 25 weeks; he was 18 years old. Upon completion of initial entry training and the award of military occupational specialty 91B (Wheeled Vehicle Mechanic), orders assigned the applicant to Fort Polk, and he arrived at this new unit, on 9 December 2016. b. On 11 February 2017, the Fort Polk military police (MP) responded to a report of a traffic accident; on arrival, they found the applicant had backed up his vehicle and struck a pole. The MPs noticed the strong smell of alcohol and a valid breath sample revealed a blood alcohol level (BAC) of 0.120 percent; in addition, the MPS found an open container of alcohol in the vehicle, and that the applicant was under the legal age for drinking alcohol. c. On 16 February 2017, the Commanding General (CG), Joint Readiness Training Center and Fort Polk issued the applicant a general officer memorandum of reprimand (GOMOR) because the applicant drove his motor vehicle while have a BAC of 0.120 percent. The applicant's actions violated State law, which prohibited individuals under the age of 21 from having a BAC in excess of .02 percent. (1) On 21 February 2017, the applicant acknowledged the GOMOR and initially stated he would provide a written rebuttal, but, on 22 March 2017, he declared he no longer wished to submit matters in his own behalf. (2) The applicant's chain of command all recommended the GOMOR's filing in the applicant's permanent official military personnel file (OMPF). The company commander added the applicant showed no remorse for his actions but had willingly participated in the Army Substance Abuse Program. (3) On 9 June 2017, the Commanding General (CG), Joint Readiness Training Center and Fort Polk directed the GOMOR's filing in the applicant's permanent OMPF. d. The applicant's separation packet is not available for review; however, his service record includes the separation authority's approval memorandum, dated 3 July 2018, and the applicant's DD Form 214. (1) The DD Form 214 shows, on 13 July 2018, the Army discharged the applicant under other than honorable conditions; he completed 2 years, 3 months, and 16 days of his 3-year, 25-week enlistment contract. (2) The separation authority was chapter 10 (Discharge in Lieu of Trial by Court- Martial), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). The applicant was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and a marksmanship qualification badge. 3. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 4. The applicant requests the upgrade of his under other than honorable conditions discharge. a. The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. However, AR 600-8-104 (Military Personnel Information Management/Records) requires the separation case files to be placed in the affected Soldier's OMPF. b. Although the basis for court-martial charges is unavailable, the separation authority is listed as chapter 10, AR 635-200. Per this provision, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, which carried a punitive discharge among the maximum punishments, could request separation in-lieu of trial by court- martial; such requests are voluntary and the Soldier could make his/her request once court-martial charges had been preferred. c. The ABCMR does not grant requests for upgraded characters of service solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. One potential outcome was to grant partial relief with an upgrade to general, under honorable conditions. However, upon review the of the applicant’s petition and available military records, the Board noted, the applicant provided insufficient evidence of post-service achievement or character letters of support to show honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue this type of discharge to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses, which, under the UCMJ and the Manual for Courts-Martial included a bad conduct or dishonorable discharge among the maximum punishments. The Soldier could submit such a request at any time after court- martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 2. 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. 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. 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. 3. AR 15-185 (ABCMR) states: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. b. An applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 4. AR 600-8-104 states case files for approved separations will be placed in the Soldier's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016797 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1