IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220007360 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he is requesting an upgrade of his characterization of service to be eligible for benefits for him and his family. He states his record shows no derogatory actions prior to the initiation of his separation except for returning hours late from leave, and he does not believe this was grounds for separation. He states, in effect, he was young (19-20) at the time and did not know how to respond or challenge the action that was being taken against him; therefore, he accepted the discharge without questioning or confrontation. He understands that he is bringing this up 20 years later, but he was unaware of the benefits for which he was eligible or available to him and his family. He states, after talking to former military friends about their experiences, they explained the benefits that he could be eligible to receive. 3. The applicant enlisted in the Regular Army on 25 July 2000. The highest rank he held was private (PV2)/E-2. 4. The applicant was counseled for the following: * 20 March 2001 - failure to follow instructions * 4 April 2001 - failure to report from leave; Absent without Leave (AWOL) 5. On 10 April 2001, the applicant accepted non-judicial punishment (NJP) under summarized Article 15, uniform code of military justice (UCMJ), for without authority, failing to go at the time prescribed to his appointed place of duty on or about 2 April 2001 and on or about 3 April 2001. His punishment included 14 days of extra duty. 6. The applicant was counseled for the following: * 12 May 2001 - failure to be at the proper place of duty at the proper time * 29 May 2001 - failure to report * 30 May 2001 - failure to report * 31 May 2001 - failure to comply with Army Regulation (AR) 670-1 (Wear and Appearance of Army Uniforms and Insignia) 7. On 11 June 2001, the applicant accepted NJP under field grade Article 15 for the following misconduct: * Failing to go at the time prescribed to his appointed place of duty, to wit: 0700 formation, for his land navigation retest on or about 12 May 2001 * Failing to go at the time prescribed to his appointed place of duty, to wit: 0600 physical training (PT) formation on or about 29 May 2001, a violation of Article 86, UCMJ * Failing to go at the time prescribed to his appointed place of duty, to wit: 0600 PT formation, on or about 30 May 2001, a violation of Article 86, UCMJ * Failing to go at the time prescribed to his appointed place of duty, to wit: 0600 PT formation on or about 5 June 2001, a violation of Article 86, UCMJ 8. The applicant underwent a mental status evaluation on 29 June 2001 for the purpose of separation. The psychologist stated the applicant understood the nature of the situation facing him. A clinical interview did not reveal any psychological difficulties that would warrant treatment, and he did not display any suicidal or homicidal ideations. The psychologist cleared the applicant for any administrative action deemed appropriate by his chain of command. 9. On 1 August 2001, the applicant underwent a medical examination and the doctor stated he was qualified for chapter separation. 10. On 17 August 2001, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, by reason of a pattern of misconduct. The commander listed the following reasons for the proposed action: counseling on numerous occasions for failure to report to his appointed place of duty and receiving punishments under summarized Article 15 and field grade Article 15 proceedings for failure to go to his appointed place of duty on numerous occasions. The commander informed the applicant he was recommending he receive a general, under honorable conditions discharge and explained his rights, which included: a. Consult with military counsel or with civilian counsel retained at his own expense within a reasonable time (not less than 3 days). b. Submit statements on his own behalf. c. Request copies of documents that will be sent to the separation authority supporting the proposed separation. Classified documents may be summarized. d. Entitled to a hearing before an administrative board if he had 6 or more years of active and Reserve military service at the time of separation. e. Waive the above rights in writing at any time prior to the date the separation authority approves the separation. Failure to respond within 7 duty days constitutes a waiver of these rights. f. Submit a conditional waiver of rights to have his case heard by an administrative separation board. 11. On 21 August 2001, the applicant requested a conditional waiver for separation under the provisions of AR 635-200, chapter 14-12b. a. The applicant acknowledged he was advised by his consulting counsel of the basis for the contemplated action to separate him for a pattern of misconduct under AR 635-200, chapter 14, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. b. He waived personal appearance and consideration of his case by an administrative separation Board, contingent upon receiving a characterization of service or description of separation no less than a general, under honorable conditions. He did not submit statements on his own behalf. c. He stated he was making the request of his own free will and had not been subject to any coercion by any person. d. He understood that he may, up until the date the separation authority approves the separation, withdraw the waiver and request that an administrative separation Board hear his case. e. He understood that if the separation authority refused to accept his conditional waiver that his case would be heard before an administrative separation Board. In that case: 1) He requested personal appearance before an administrative separation Board. 2) He requested representation by legal counsel. 3) He understood that his willful failure to appear before the administrative separation Board by absenting himself without leave would constitute a waiver of his right to a personal appearance before the Board. f. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, 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. He may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, that an act of consideration by either Board does not imply that his discharge would be upgraded. g. He further understood he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge. 12. On 22 August 2001, the applicant's immediate commander recommended approval of the separation under the provisions of AR 635-200, paragraph 14-12b, a pattern of misconduct, with a general, under honorable conditions discharge. 13. On 4 September 2001, the separation authority approved the discharge and directed the applicant be issued an under honorable conditions (general) discharge. 14. The applicant was discharged on 12 September 2001. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of a pattern of misconduct, in the rank/grade of private (PVT)/E-1, and his service was characterized as under honorable conditions (general). He completed 1 year, 1 month, and 18 days of net active service during the covered period. His DD Form 214 shows he was awarded the Army Service Ribbon and the Aircraft Crewman Badge. 15. Regulatory guidance states when an individual is discharged under the provisions of Chapter 14, AR 635-200 for a pattern of misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 16. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 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, 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, U.S. 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 (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. The honorable characterization is appropriate when the quality of the Soldier'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 used for 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, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20220007360 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1