IN THE CASE OF: BOARD DATE: 2 February 2023 DOCKET NUMBER: AR20220000561 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ACTS Online application in lieu of DD Form 149 (Application for Correction of Military Record), 3 November 2021 * Signature page, 3 November 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, his first sergeant wanted to put him out of the Army because he was the only Black person in his platoon. He was harassed and picked for work details. He was unable to pass the physical training test and that should not fall under misconduct. He is disabled and does not want a general discharge on his family legacy. 3. The applicant provided his application requesting an upgrade with a signature page. 4. A review of the applicant's service records shows: a. On 25 November 1992, he enlisted in the Regular Army for a period of 6 years at grade/pay grade private/E-1. He completed Basic Combat Training at Fort Jackson, he completed Advanced Individual Training at Fort Eustice, and he was awarded military occupational specialty 67T (Helicopter Repairer). He subsequently attained the grade/pay grade E-4/specialist. b. He was assigned: * 14 July 1993 to 6 August 1996, to Headquarters and Headquarters Company, 4th Battalion, 25th Aviation Regiment, Schofield Barracks * 10 September 1996 to 9 June 1997, to 10th Aviation Regiment, Fort Drum b. He was counseled (DA Form 4856) on: * 5 November 1996, for his positive performance during October 1996 * 13 November 1996, for insufficient funds in his bank account * 6 December 1996, for personal financial responsibility and being at his appointed place of duty during November 1996 * 9 January 1997, for Army physical fitness test failure on 8 January 1997 * 17 March 1997, for unauthorized use of a government issued credit card in the amount of $820.00 * 19 March 1997, for a third warning letter of debt from the post exchange, and for unauthorized absence in that he was not in the right place at the right time * 19 March 1997, for consideration of separation for misuse of a government issued credit card and uttering bad checks c. Records provided by U.S. Criminal Investigation Division, U.S. Army Crime Records Center, contain a Commander's Report of Disciplinary or Administrative Action (DA Form 4833), 3 December 1996. The report contains a Military Police Report Number (), 2 August 1996, showing he was involved in a verbal altercation on 7 June 1996, that turned physical at Schofield Barracks. The report reads, in part, he struck another Soldier and was stabbed in the left shoulder by the same Soldier. He was transported to Schofield Barracks urgent care clinic where he was treated for his injuries, and he was released to his unit. No alcohol or drug involvement was reported. Sufficient probable cause existed to title him. The report notes that his commander intended administrative action by issuance of a final letter of warning but by then he had changed station to Fort Drum. d. On 19 March 1997, he accepted nonjudicial punishment under the provisions of Article 15 or the Uniform Code of Military Justice (UCMJ) for misuse of a government issued credit card in the amount of $819.43, at Fort Drum between 12 October 1996 and 3 March 1997, by falsely prepending the charges were for temporary duty assignment when they were not. Matters in mitigation were not presented during the closed hearing. The punishment imposed was not recorded on the DD Form 2627 (Record of Proceedings Under Article 15, UCMJ). e. His records contain credit card financial statements showing a list of the charges made to his credit card account between October 1996 and February 1997. f. His record contain an AFEES letter notifying his installation commander he uttered four bad checks totaling of $320.00 during October 1996. g. On 21 March 1997, he underwent a medical examination and gave a report of medical history, indicating he was in good health. The examining physician noted he was qualified for separation or retention. h. On 21 March 1997, he underwent a mental health examination as requested by his command. A DA Form 3822-R (Report of Mental Status Evaluation) shows the Chief Psychiatrist, Community Mental Health Service, For Drum Army Medical Center, shows he was evaluated under the provisions of Army Regulation 635-200, Paragraph 14. The report states: (1) He had normal behavior and a fully oriented level of alertness with an unremarkable mood or affect; he had a clear thinking process with normal content and good memory. (2) In the examiner's opinion, he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501, Chapter 3. (3) There was no evidence of psychiatric condition which would warrant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by his command. i. On 1 May 1997, his Company Commander, B Company, 2nd Battalion, 10th Aviation Regiment, 10th Aviation Brigade, Fort Drum, notified him he was initiating action to separate him for patterns of misconduct under the provisions of Paragraph 14- 12b, Army Regulation 635-200 for commission of a serious offense and advised him of his rights. His commander recommended he receive a general under honorable conditions characterization of service. He stated the following reasons for his proposed action was that the applicant had received nonjudicial punishment under the provisions of Article 15 of the UCMJ for misuse of government resources, for having numerous counseling statements for writing bad checks, and for failure to pass the APFT. The applicant understood he may consult with consulting counsel, he may submit written statements in his own behalf, and he may obtain copies of the documents that would be sent to the separation authority supporting the proposed separation. j. On 2 May 1997, he acknowledged receipt of his commander's separation notification in writing and he elected his rights. He elected his right to consult with consulting counsel and to submit a statement in his own behalf. He understood that he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He further understood that as the result of issuance of a general, under honorable conditions discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. k. On 5 May 1997, his immediate commander initiated separation action against him and recommended approval of separation under the provisions of Army Regulation 635- 200, chapter 14-12b, for patterns of misconduct with a General Discharge Certificate. In this recommendation his company commander noted he received NJP under the provisions of Article 15 of the UCMJ for a misuse of government resources. This recommendation shows the punishment he received as the result of NJP on 19 March 1997 was a forfeiture of $279.00, reduction to private first class/E-3, and extra duty for 14 days. l. On the same date his battalion commander recommended his separation from service for patterns of misconduct with a General Discharge Certificate. m. On 19 May 1997, the separation authority (brigade commander) approved his separation under the provisions of Army Regulation 635-200, Paragraph 14-12b for patterns of misconduct and directed he receive a General Discharge Certificate. He further directed no transfer to the Individual Ready Reserve. n. On 9 June 1997, he was discharged with a characterization of service of general under honorable conditions. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct at grade/pay grade PFC/E-3. He completed 4 years, 6 months, and 15 days of active service during this period with no time lost. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Small Bore Pistol Bar * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Aircraft Crewman Badge 5. 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 determination guidance. 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/was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the pattern of misconduct leading to the separation, the lack of mitigation for any of the misconduct and the lack of post-service character evidence submitted by the applicant, the Board concluded there was insufficient evidence of an error or injustice warranting 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000561 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1