IN THE CASE OF: BOARD DATE: 30 June 2023 DOCKET NUMBER: AR20220008406 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to an honorable discharge APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), 19 May 1999 FACTS: 1. The applicant states, in effect, he was disciplined for his infractions while in the service. He acknowledged his wrong doings and completed all requirements in relation to the disciplinary actions. He lost rank and was financially impacted from the reduction in pay, and he was still discharged under less than honorable conditions. He states that the discharge was unjustified because disciplinary actions had already been taken. 2. A review of the applicant’s service record shows: a. DD Form 4 (Enlistment Document) shows he enlisted in the Regular Army on 24 July 1996. b. The applicant was counseled for the following: * Command directed urinalysis for suspicion of possible illegal substance use * Absent from work formation * Unshaven for accountability formation * Failure to meet Class A standards, per Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) during the battalion command inspection * Accountability – being late or cutting it close for formation or report times, as directed * Absent for work without chain of command permission * Failure to maintain performance standards: not in place of duty at prescribed time, not in proper uniform at prescribed time, not available physically, telephonically, or otherwise or several occasions, disrespect/disregard to an officer, and lack of motivation * Job performance as the Emergency Department Liaison: continually leaving the emergency room (ER) without telling anyone, leaving his radio behind so he could not be contacted, and making personal runs (post exchange and shoppette) * Disrespect to a non-commissioned officer (NCO) * Dereliction of duty – sleeping on duty * Failure to inform the charge of quarters (CQ) of visitors in his barracks room, which was a violation of the III Corps Barracks Policy Letter #18 (two times) * Failure to make formation on time * Lying to an NCO * Refusal to respond to 0530 wakeup (two times) * Initial bar to reenlistment * Failing to log in from leave status * Failure to obey traffic signs and driving with a suspended license c. A Letter from the Head Nurse (HN) at the ER, dated 25 June 1998, which states the applicant was a well-motivated Soldier and indeed a helping hand around the ER. The HN stated that it was not the applicant’s fault that he was not able to be contacted. For the first two weeks of his rotation, the ER had problems with their radio base station and handhelds; therefore, the applicant could not be contacted when necessary. d. On 28 September 1998, he accepted non-judicial punishment (NJP) under summarized Article 15, UCMJ, for at or near Fort Hood, Texas, on or about 2 September 1998, with the intent to deceive, make to an NCO, and official statement, to wit: “my car has a flat tire and I’m in Harker Heights, and I’ll be late to sign in at the CQ desk” or words to that effect, which statement was totally false, and was then known by the applicant to be false. This was a violation of Article 107, Uniform Code of Military Justice (UCMJ). His punishment included 14 days of extra duty and 14 days restriction to the barracks. e. A Request and Authority for Leave and Pass Headquarters and Service Company (HSC), 61st Area Support Medical Battalion, dated 4 December 1998, which shows the applicant requested leave from 4 January 1999 to 14 January 1999 (10 days) to go home for the holidays. f. DA Form 4126-R (Bar to Reenlistment Certificate), dated 21 December 1998, shows the applicant was barred from reenlistment. The applicant initialed he was furnished with a copy of the bar to reenlistment, he was counseled and advised of the basis for the action. The applicant submitted a statement in his own behalf and stated the following: 1) He received a counseling statement on 26 August 1998 for failing to make formation. While it was true that he was not at the formation, the time for formation was changed after the end of the duty day on 25 August 1998. 2) The counseling statement for 3 December 1998 states that he failed to respond to the barracks wake up call by the CQ at 0530. The CQ was 30 minutes early for the wake-up call. 3) The counseling statement for 9 December 1998 states that he failed to respond to the barracks 0530 wake-up and was still in his bed at 0542 when the NCO did her barracks check. The unit provides the barracks wake up as a courtesy for the Soldiers residing in the barracks, but it is not a military requirement. 4) He received a summarized Article 15 in October 1998 for failing to sign in for formation 30 minutes early on the last day of his corrective training was incorrect. He was not late for formation on that particular date, he just did not sign in 30 minutes prior to formation. 5) The wake-up policy provided by his section and the barracks checks by the NCOs in his platoon are against the objectives of the Better Opportunities for Single Service Members (BOSS) program. 6) He respectfully requested that the Bar to Reenlistment be disapproved to allow him to reenlist and continue his career as a Soldier. He was placed on levy for two good assignments and the assignments were deleted by his unit and there is no pattern of continuous lateness as stated on the DA Form 4126-R. 7) He has not been late for formation since 26 August 1998. He was late signing in on the last day of his corrective training, but since that date he has continued to Soldier to the best of his ability and been at his place of duty at the appointed time. g. A situation report from the Department of Transportation, Commonwealth of Virginia dated 15 January 1998, shows winter storm warnings and winter weather advisories were in effect for most of the north and north-central part of the state. A winter mix of freezing rain, sleet, and snow, with icy conditions on the highways, trees, and power lines. h. A letter from the applicant’s mother to his battalion commander dated 19 January 1999, states she was concerned about the harassment her son was receiving by his unit. She stated that the latest harassment generated by her son’s first sergeant (1SG) would not go unchallenged by her. Her son was being required to obtain a road condition verification from the Virginia State Police. She requested that a 15-6 investigation be initiated to the reason her son was being treated differently and subjected to other conditions that other Soldiers were not subjected to within the company. i. On 27 January 1999, the applicant formally appealed the Bar to Reenlistment. The Commander, 1st Medical Group, Fort Hood, Texas, disapproved the appeal on 22 February 1999 and stated that based on the information provided, the circumstances did not warrant approval of the appeal. j. On 9 March 1999, the applicant accepted NJP under field grade Article 15 for violating a lawful order, to wit: III Corps and Fort Hood Policy Letter Number 18, paragraph 4g, by allowing a female to stay overnight in his assigned room, D31, in building 39035, on or about 8 January 1999. His punishment included reduction to PFC/E-3, forfeiture of $150.00, and 45 days of extra duty. k. On 2 April 1999, 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 pattern of misconduct. The commander informed the applicant he was recommending he receive a general, under honorable conditions discharge and explained his rights. The commander listed the following reasons for the proposed action: * On 5 March 1999, he received an Article 15 for violation of III Corps and Fort Hood Policy Letter Number 18, paragraph 4g, dated 18 March 1998 (Article 92, UCMJ) * On 19 January 1999, he received a Bar to Reenlistment * On 28 September 1998, he received a summarized Article 15 for false official statement (Article 107, UCMJ) * Numerous failures to repair, disrespect to an NCO, and numerous other negative counselings l. On 2 April 1999, the applicant acknowledged receipt of his commander’s separation notification and after being advised by his consulting counsel of the basis for the contemplated action to separate him for pattern of misconduct under AR 635-200, Chapter 14, paragraph 12b, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. 1) He understood that if he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation for reason of misconduct under AR 635-200, Chapter 14, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions. 2) He requested consideration of his case by an administrative separation Board and a personal appearance before the Board. 3) He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. 4) He further understood that, if he received a discharge certificate/character of service which was less than honorable, he may make application to the Army Discharge Review Board (ARBA) or the Army Board for Correction of Military Records (ABCMR) for upgrading; however, an act of consideration by either board did not imply that his discharge will be upgraded. 5) He understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge. m. His record contained ten letters and statements of support, dated from 7 April 1999 to 12 April 1999, from various Soldiers and NCOs that worked closely with the applicant. n. On 12 April 1999, the applicant requested a rehabilitative transfer to prove that he had the ability and desire to be a good Soldier. He stated that a transfer to a new battalion would give him an opportunity for a fresh start and to prove his willingness to comply with all Army rules and regulations. o. On 14 April 1999, the applicant's immediate commander recommended approval of the separation under the provisions of AR 635-200, paragraph 14-12b, pattern of misconduct, with a general, under honorable conditions discharge. The commander stated that the command tried to rehabilitate the Soldier on numerous occasions and felt that the applicant could not be rehabilitated any further. The intermediate commanders echoed the immediate commander's recommendation. p. On 30 April 1999, the separation authority approved the discharge and directed the applicant be issued an under honorable conditions (general) discharge and not be transferred to the Individual Ready Reserve. q. The applicant was discharged on 19 May 1999. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 14, misconduct, in the rank/grade of private (PFC)/E-3, and his service was characterized as under honorable conditions (general). He completed 2 years, 9 months, and 26 days of net active service during the covered period. Additionally, his DD Form 214 shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): National Defense Service Medal, Armed Forces Service Medal, Army Service Ribbon, NATO Medal, Expert Marksmanship Qualification Badge with grenade bar, and Marksman Marksmanship Qualification Badge with rifle bar * Item 18 (Remarks): Member has completed first full term of service. * Item 26 (Separation Code): JKA * Item 27 (Reentry Code): 3 r. On 23 June 2000, the Army Discharge Review Board denied his request for a change in the character and/or reason for his discharge. The Board determined that the applicant was properly and equitably discharged. 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 request, supporting documents, evidence in the records, and published DoD 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 for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that 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. 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. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided that enlisted Soldiers separated under the provisions of AR 635-200, paragraph 14-12b for Misconduct-Pattern of Misconduct would receive a separation code of "JKA." 3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable; they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 4. 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) AR20220008406 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1