IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210017529 APPLICANT REQUESTS: The applicant requests an upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 when he was at his duty station, he was bullied by his sergeant and others in the command for being bisexual. He made reports to the command, however he was punished or made fun of by his sergeants. He had a physical and mental breakdown in the year of 2000. They made every attempt to have him relocated but instead they separated him from the Army under honorable conditions [general discharge under honorable conditions]. He is happy to see that the Armed Forces today is allowing everyone to serve equally. 3. On 28 September 1999, at the age of 19 years, 6 months, and 25 days, he enlisted in the Regular Army for 3 years. His record shows: a. On 29 September 1999, he was promoted to the rank of private two (PV2/E2). b. After successful completion of advanced individual training, he was assigned to Headquarters and Service Company, 92nd Engineer Battalion, Fort Stewart, GA on 10 March 2000. c. On 26 April 2000, he was counseled by his squad leader for missing the 0630 physical training formation. d. On 15 June 2000, he was counseled by his squad leader for failing to be at his appointed place of duty at the appointed time. e. On 28 August 2000, he was counseled by his squad leader for failing to be at his appointed place of duty on 25 and 26 August 2000. f. On 30 October 2000, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on or about 25 and 26 August 2000. Punishment is not listed in block 4. g. On 1 March 2001, he was promoted to the rank of private first class (PFC/E-3). h. On 13 March 2001, he was counseled by his platoon sergeant for disobeying a lawful order given to him by the first sergeant (1SG) on 5 March 2001. During an in- ranks inspection, he was informed that the boots he was wearing was unauthorized and to obtain the proper Army authorized boots by close of business. On 7 March 2001, he was still wearing the unauthorized boots. i. On 15 March 2001, he accepted NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order on or about (date not specified). He received 14 days’ restriction and extra duty. j. On 24 April 2001, he was counseled by his platoon sergeant for disobeying a lawful order given to the platoon to remove their sweats prior to walking or running, however after the applicant took his sweats off he put them back on while the remainder of the platoon still had them off. k. On 7 May 2001, he was counseled by his platoon sergeant for violating Army Regulation (AR) 670-1 (Wear and Appearance of Army Uniform) by having flared out and bushy sideburns on 2 and 30 April, and 4 May 2001. On 3 May 2001, he was not clean shaved. l. On 8 June 2001, he was counseled by his platoon sergeant for failing to report to the unit motor-pool after leaving the Troop Medical Clinic on or about 1400hrs on 6 June 2001. m. On 16 July 2001, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully and falsely altering a DD Form 689 (Individual Sick Slip), by entering the date 29 May 2001 on or about 1 June 2001, and failing to go at the time prescribed to his appointed place of duty on or about 6 June 2001. He received reduction to the rank of private two (PV2/E2), forfeiture of $150.00 and further forfeiture of $100.00 (suspended, to be automatically remitted if not vacated before 15 August 2001), and 14 days’ restriction and extra duty. n. On 17 July 2001, he was counseled by his squad leader for failing to be at his appointed place of duty on 13 July 2001. o. On 26 July 2001, he was counseled by his squad leader for failing to be at his appointed place of duty, 0630hrs formation on 18 July 2001. The applicant stated he notified his chain of command that he was at the gym. p. On 10 August 2001, he was counseled by his squad leader for failing to report to the 0630hrs formation on 9 August 2001. He was recommended for separation from the U.S. Army under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), chapter 14. q. A DA Form 3822 (Report of Mental Status Evaluation), dated 23 August 2001, shows he was psychiatrically cleared for administrative action for a chapter 14. r. On 27 August 2001, his immediate commander requested preparation of an elimination packet for a chapter 14-12b for the applicant for a pattern of misconduct consisting solely of minor military disciplinary infractions. s. A DD Form 2807-1 (Report of Medical History), dated 7 September 2001, shows the applicant completed a separation physical with a right nostril rhinitis and chronic patellar tendonitis in his right knee. t. A DD Form 2808 (Report of Medical Exam), dated 21 September 2001, shows he received a separation exam and was qualified for service. u. On 5 October 2001, he was counseled by his squad leader for failure to be at his appointed place of duty, failure to obey a lawful order, and failure to be in the proper uniform. The applicant disagreed with the counseling, stating he was out of uniform and told the sergeant the reason. At 0728hrs, the 1SG told him to meet him for extra duty at 6:00 with his Kevlar and flack vest. He arrived at 5:30 (30 minutes early), and was asked why he wasn’t there at 2100hrs like he was told this morning. v. On 23 October 2001, he accepted NJP under the provisions of Article 15, UCMJ, for failure to obey a lawful order and failing to bring a fragmentation vest for the 0630hrs first formation and physical training on or about 5 October 2001. He received 14 days’ restriction and extra duty. w. O 14 November 2001, his immediate commander advised him in writing of his intent to separate him under the provisions of AR 635-200, chapter 14, paragraph 14- 12b (Pattern of Misconduct) with a general discharge. The commander stated the basis for this action was the applicant's numerous failures to report, failure to obey a lawful order, and wrongfully altering a military document. On the same date: (1) The applicant acknowledged receipt of the notification for separation. He consulted with legal counsel and was advised of the contemplated action to separate him under the provisions of AR 635-200, paragraph 14-12b, and its effects, and the rights available to him. He elected not to submit a statement in his own behalf. (2) His immediate commander recommended he receive a general under honorable conditions discharge prior to his expiration term of service under the provisions of AR 635-200, chapter 14, paragraph 14-12b (Pattern of Misconduct), waiver of a rehabilitation transfer per AR 635-200, paragraph 1-16, and not be transferred to the Individual Ready Reserve (IRR) per AR 635-200, paragraph 1-35. x. On 19 November 2001, the applicant requested to be retained in the Army to have a chance to change his life for the better and leave the military in a positive way. y. On 29 November 2001, his intermediate commander recommended he receive a general under honorable conditions character of service under the provisions of AR 635-200, Chapter 14, paragraph 14-12b (Pattern of Misconduct), and not be transferred to the IRR. z. On 6 December 2001, the appropriate authority directed the applicant's separation under the provisions of AR 635-200, Chapter 14, paragraph 14-12b (Pattern of Misconduct), with a general under honorable conditions character of service, and would not be transferred to the IRR. aa. Orders, dated 28 December 2001, assigned him to the U.S. Army Transition Point, Fort Stewart, GA for transition processing, effective 8 January 2001. ab. On 8 January 2001, he was discharged accordingly. His DD Form 214 shows he was discharged from active duty under the provisions of AR 635-200, paragraph 14-12b (Pattern of Misconduct) with a general under honorable conditions character of service. He completed 2 years, 3 months, and 11 days of net active service during this period and was awarded or authorized the Army Service Ribbon. His DD Form 214 shows in: * block 24 (Character of Service) - Under Honorable Conditions (General) * block 25 (Separation Authority) - AR 635-200, paragraph 14-12b * block 26 (Separation Code) - "JKA" * block 27 (Reentry (RE) Code) - "3" * block 28 (Narrative Reason for Separation) - Misconduct 4. On 8 December 2002, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general under honorable conditions discharge. On 30 July 2003, after careful review of his application, military records and all other available evidence, the ADRB determined that the applicant was properly and equitably discharged. Accordingly, his request for an upgrade of his discharge was denied. 5. The applicant requests an upgrade so that he may have access to the GI Bill. He has been successfully working in the oil and gas industry for 14 years. In order to get promoted in construction management he requires a college degree. He also wants to be an inspiration to his son by going to college. a. His record shows he enlisted in the Army at the age of 19 and at the age of 20, he was discharged from the Army for receiving four company grade Article 15s, and numerous counselings for failures to report, failure to obey a lawful order, and wrongfully altering a military document. b. During the applicant's era for service, commanders were to initiate separation action against Soldiers who displayed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and/or conduct that was prejudicial to good order and discipline. c. The ABCMR is not authorized to 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 accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 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. Upon review of the applicant’s petition and available military records, the Board majority found insufficient evidence of in-service mitigation to overcome the misconduct. The Board further found insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 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. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. 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, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. d. Chapter 1, paragraph 1-16 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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. 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. 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, 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. 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) AR20210017529 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1