IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220007078 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge, and his narrative reason for separation be changed to "Secretarial Authority." Further, he requests that the Military Outstanding Volunteer Service Medal (MOVSM) be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), dated 1 April 2022 * Legal Brief (eight pages) * Exhibit 1 – DD Form 4 (Enlistment/Reenlistment Document), dated 9 September 2003 * Exhibit 2 – DD Form 4, dated 9 December 2007 * Exhibit 3 – Permanent Orders 093-016 (Deployment Order), dated 2 April 2008 * Exhibit 4 – DD Form 4, dated 22 August 2008 * Exhibit 5 – Course Completion Certificate, dated 13 February 2004 * Exhibit 6 – DA Form 4187 (Personnel Action), dated 21 August 2007 * Exhibit 7 o DD Form 214, dated 17 April 2009 o NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service), dated 29 July 2005 o NGB Form 22, dated 21 August 2008) * Exhibit 8 – DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 16 February 2005 * Exhibit 9 – DA Form 2627, dated 9 January 2009 * Exhibit 10 – Separation packet, dated 26 March 2009 * Exhibit 11 – DA Form 3881 (Rights Warning Procedures/Waiver Certificate), dated 8 January 2009 * Exhibit 12 – DA Form 2627, dated 25 March 2009 * Exhibit 13 – Digital Image (e-Mail), dated 23 December 2008 * Exhibits 14 through 17 – Character Reference Letters (4) * Exhibit 18 – Unofficial College Transcript, dated 1 September 2019 * Exhibit 19 – Certificates of Completion (three) * Exhibits 20 through 21 – Character Reference Letters (two) * Exhibit 22 – Certificates of Appreciation (five) * Exhibit 23 – President’s Volunteer Service Award Certificate * Exhibit 24 – Certificate of Appreciation, dated 7 December 2020 * Exhibit 25 – Unofficial Law Enforcement Exam Results, dated 27 February 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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. Counsel states, the applicant served honorably both before and after the incident at issue. His character and many accomplishments have earned him the respect of his fellow Soldiers. His honorable service should not be redefined by an isolated incident. This Board should undo the discretionary error made against him and upgrade his discharge for reasons of propriety and equity. 3. The applicant did not provide a statement in support of his request. 4. The applicant enlisted in the Army National Guard (ARNG) on 9 September 2003, for 8 years. Upon completion of training, he was awarded military occupational specialty 88M (Motor Transport Operator). 5. On 16 February 2005, the applicant accepted non-judicial punishment (NJP) under Article 15 of the UCMJ, for failing to obey a lawful order by wrongfully refusing to attend training, on or about 11 February 2005. His punishment included 14 days restriction, forfeiture of $288 pay, and 14 days of extra duty. 6. An Army Discharge Review Board (ADRB) case report shows that on 23 March 2005, the applicant accepted NJP under Article 15 of the UCMJ, for assault on a second lieutenant on or about 15 February 2005; disrespect towards a second lieutenant on or about 15 February 2005; and going from his appointed place of duty on or about 15 February 2005. 7. The applicant served in Southwest Asia from 5 May 2005 to 13 July 2005. 8. The previous ADRB case report also shows that on 13 June 2005, the court-martial charges were preferred against the applicant for assault; disobedience of a lawful order of a noncommissioned officer at Camp Striker, Baghdad; disobeying a lawful order from a sergeant; and for striking a staff sergeant with his hands. a. He consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. b. On 4 July 2005, consistent with the chain of command's recommendation the separation authority approved the separation action with the issuance of an under other than honorable conditions (UOTHC) discharge. The applicant was to be reduced to the lowest enlisted rank. The DD Form 214 for this period of active service is illegible. 9. On 29 July 2005, the applicant was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group. His NGB Form 22 confirms he was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-27d, in lieu of court-martial authorized to adjudge a punitive discharge. His service was characterized as under honorable conditions (general). 10. The applicant petitioned the ADRB for consideration of his request to have his UOTHC discharge upgraded to an honorable. On 23 February 2007, The Board voted to deny relief and determined his discharge was both proper and equitable. 11. The applicant enlisted in the ARNG on 9 December 2007, for 6 years. 12. On 21 August 2008, the applicant was discharged from the ARNG and transferred to the U.S. Army Recruiting Command. His NGB Form 22 shows his service from 9 December 2007 to 21 August 2008 was characterized as honorable. 13. The applicant enlisted in the Regular Army on 22 August 2008, for 3 years and 2 weeks. He served in Southwest Asia from 1 September 2008 to 7 April 2009. 14. On 9 January 2009, the applicant accepted NJP under Article 15 of the UCMJ, for missing movement of his flight back to Iraq, on or about 26 December 2008. His punishment included reduction to E-3, forfeiture of $929 of pay, extra duty for 45 days, and restriction for 45 days. 15. On 25 March 2009, the applicant accepted NJP under Article 15 of the UCMJ, for sleeping on his post while posted as a sentinel, on or about 24 January 2009. His punishment included reduction to E-2, forfeiture of $834 of pay for a month, extra duty for 45 days, and restriction for 45 days. 16. The applicant's immediate commander notified him on 26 March 2009 that he was initiating actions to separate the applicant under the provisions of Army Regulation 635- 200, Chapter 14-12b, for acts of misconduct ranging from sleeping on guard duty; missing movement; disrespect towards a superior commissioned officer; disobeying a lawful command from a commissioned officer and disobeying a lawful order from a noncommissioned officer. 17. On 26 March 2009, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. He declined to submit a statement in his own behalf. 18. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14-12b. On 29 March 2009, consistent with the chain of command's recommendation the separation authority approved the separation action with the issuance of a General Discharge Certificate. 19. The applicant was discharged on 17 April 2009. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct. His service was characterized as under honorable conditions (general). He completed 7 months, and 26 days of net active service this period. He was awarded or authorized the: National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with Campaign Star, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and the Armed Forces Reserve Medal with Mobilization (M) Device. 20. Through counsel, the applicant provides: a. A DA Form 4187 that shows his advancement to E-2, effective 21 August 2017. b. A Digital image of an e-Mail conversation sent 22 December 2008, where he informs a sergeant major that his son is ill. c. Character Reference Letters (six) that collectively attest to the applicant's growth, honor, willingness to help, work ethic, and his character. Several letters speak to his charitable work and the dedicated service he provides to the community. These letters are provided in their entirety for the Board’s review within the supporting documents. d. Unofficial college transcript that shows he is pursuing a degree from Florida State College at Jacksonville. e. Certificates of Completion/Training that show he has met all training requirements in a 10-hour Construction Industry, plumbing and carpentry course. f. Certificates of Achievement from the Federal Emergency Management Agency that collectively reaffirm his dedication to serve and professional development. g. President’s Volunteer Service Award that recognizes his volunteer service to his community and country. h. Certificate of Appreciation from the Jacksonville’s Sheriff Office that recognizes his outstanding service to the community in April 2020. i. Unofficial copy of the Florida Law Enforcement examination results dated 27 February 2020, that show he passed with an 85 percent score. 21. Army Regulation 600-8-22 (Military Awards) provides Army policy and criteria concerning individual military decorations. It states that the MOVSM was established on 9 January 1993 and may be awarded to members of the Armed Forces and their Reserve Components who, subsequent to 31 December 1992, perform outstanding volunteer community service of a sustained, direct, and consequential nature. 22. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board found the character letters of support noteworthy, attesting to his character and his impact within his community. However, the Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 7 months, and 26 days of net service. The Board determined based on the preponderance of evidence the narrative reason and separation code was not in error or unjust. 2. The Board found insufficient evidence to show the applicant met the criteria for award of the Military Outstanding Volunteer Service Medal (MOVSM). The burden of proof rest with the applicant and his counsel to show he met the following criteria based on regulatory guidance: (1) be to the civilian community, to include the military family community; (2) be significant in nature and produce tangible results; (3) reflect favorably on the Military Service and the Department of Defense; and (4) be of a sustained and direct nature. Furthermore, the Board noted 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. Therefore, the Board denied relief. 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 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. Title 10, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 635-200 sets 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 this chapter. 4. Army Regulation 600-8-22 (Military Awards) prescribes the policies and procedures concerning United States Army awards to foreign military personnel and foreign decorations to U.S. Army personnel. a. There are no statutory or regulatory time limits pertaining to award of service medals and ribbons. Approval of service medals and ribbons are based on administrative determinations rendered by the commander or servicing personnel officer. These decisions should, however, be reflected in an appropriate memorandum, letter, or form addressed to the affected Soldiers. b. To qualify for award of the MOVSM a service member's volunteer service must meet the following requirements: (1) be to the civilian community, to include the military family community; (2) be significant in nature and produce tangible results; (3) reflect favorably on the Military Service and the Department of Defense; and (4) be of a sustained and direct nature. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20220007078 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1