IN THE CASE OF: BOARD DATE: 3 August 2023 DOCKET NUMBER: AR20230001428 APPLICANT REQUESTS: to change his character of service from general, under honorable conditions to honorable. He also requests a personal hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 10 October 2022 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 volunteered to go to Honduras on temporary duty to accept a tasking that came down to his unit. While in Honduras, he excelled as a medic. He is a nationally registered emergency medical technician, and he had ambitions to become an emergency room physician. His commander at the medical unit saw his potential to become a doctor and began the paperwork for him to go green to gold and attend medical school. The packet was forwarded to his company commander at Fort Riley, KS. His company commander declined his green to gold request, and he barred him from reenlistment because he did not meet his personal vision of a dedicated Soldier. His company commander also verbally stated that he was going to end his medical career. 3. The applicant has prior service in the U.S. Army Reserve (USAR). On 24 November 1987, he enlisted in the Regular Army. He completed training and was awarded military occupational specialty (MOS) 91A (Medical Specialist). 4. A police report shows, on 13 December 1989, patrol observed a vehicle fail to maintain a single lane of travel. The vehicle was stopped, and the operator was identified as the [applicant]. Patrol observed an open bottle of wine in the passenger area of the vehicle and identified the passenger as H___. A national crime information center check revealed the applicant s license was suspended for failure to appear. The applicant and the passenger H____ were apprehended and released to their unit. 5. On 9 March 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty on 2 March 1990. His punishment consisted of reduction to E-3, (suspended for 90 days to be automatically remitted if not vacated before 9 June 1990); forfeiture of $207.00 pay for one month; and 30 days extra duty. 6. A DA Form 2627-2 (Record Supplementary Action Under Article 15) shows, in part on 9 March 1990, the suspension of his punishment, reduction to E-3 was vacated. The reason was that on or about 13 March 1990, the applicant was disrespectful to a noncommissioned officer, by saying kiss my black a__. This was a violation of Article 91, UCMJ. 7. On 24 July 1990, his commander initiated a report to suspend favorable personnel actions (FLAG). 8. His records contain 12 DA Forms 4856 (General Counseling Form) showing he received the following adverse counseling: * On 25 October 1988, he was counseled for failure to complete course * On 26 October 1988, he was counseled for passing worthless checks * On 4 January 1989, he was counseled for failure to pay just debts * On 27 March 1989, he was counseled for failure to pay just debts * On 8 December 1989, he was counseled for failure to pay just debts * On 15 December 1989, he was counseled for violation of a general order, failure to be at appointed place of duty, statement of understanding prior to leave approval * On 2 February 1990, he was counseled for statement of understanding for attendance at emergency medical technician and CPR class. * On 8 February 1990, he was counseled for failure to be at appointed place of duty * On 2 March 1990, he was counseled for lying to a commissioned officer * On 11 June 1990, he was counseled for failure to be at his appointed place of duty * On 18 July 1990, he was counseled for lying to a noncommissioned officer to secure a 30-day leave * On 19 July 1990, he was counseled for falsifying a statement 9. On 15 August 1990, he accepted NJP under Article 15, UCMJ, for the following: a. Being indebted to Consumer Adjustment Corporation in the sum of $563.00 for a car stereo, which became due and payable on or about 15 June 1990. b. On or about 17 May 1990, wrongfully make to pizza time a check upon the First Savings Bank in words and figures as follows, to wit: Seven dollars and forty-nine cents knowing that he did not have sufficient funds. This is a violation of Article 123a, UCMJ. c. On or about 1 July 1990, wrongfully make to pizza time a check upon the First Savings Bank in words and figures as follows, to wit: Eleven dollars and forty-five cents knowing that he did not have sufficient funds. This is a violation of Article 123a, UCMJ. d. His punishment consisted of reduction to the grade of E-2, forfeiture of $189.00 pay (suspended for 120 days to be automatically remitted if not vacated before 15 December 1990); 30 days restriction and 30 days extra duty. 10. A Report of Mental Status Evaluation, completed on 30 July 1990, shows in part, the applicant was evaluated and psychiatrically cleared for any administrative action deemed necessary by his command. 11. A DA Form 2627-2 shows, in part on 15 August 1990, the suspension of his punishment, forfeiture of $189.00 pay was vacated. The reason was that on or about 21 September 1990, the applicant with the intent to defraud, made utter to Specialist A____ Y____ a certain check knowing that he did not have sufficient funds. This was a violation of Article 123a, UCMJ. 12. On 14 November 1990, the applicant accepted NJP under Article 15, UCMJ, for failure to go to his appointed place of duty on 21 October 1990. His punishment consisted of reduction to E-1, and 45 days extra duty, and 45 days restriction. 13. On 15 November 1990, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance. His commander's rationale for the proposed action was due to the applicant receiving one company grade Article 15 and two field grade Article 15 s, several adverse counseling s, and serious debt problems. a. The applicant's commander notified him of the intent to recommend an under honorable conditions (general) discharge. The commander also informed the applicant of his right to: consult with legal counsel; to submit written statements in his own behalf; to obtain copies of the documents sent to the separation authority; to a hearing before an administrative board if he had 6 or more years of service; to waive his rights; and to have his case heard by an administrative separation board if entitled. b. The applicant acknowledged receipt of the commander's notification. 14. On 15 November 1990, the applicant consulted with counsel who advised him of the basis for the contemplated action to separate him for unsatisfactory performance under AR 635-200, Chapter 13, paragraph 13-2a, and its effect; of the rights available to him; and the effect of any action taken by me in waiving his rights. He declined making a statement on his own behalf. He acknowledged he understood: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * 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 he may expect to encounter substantial prejudice in civilian life * if he received a discharge/character of service, which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, an act of consideration by either board does not imply that his discharge will be upgraded * he understood that he may up until the separation authority orders directs or approves his separation withdraw the waiver of any of the above rights and request that an administrative board, if authorized to hear his case 15. On 15 November 1990, the applicant's immediate commander initiated separation action against the applicant under chapter 13 of AR 635-200 for unsatisfactory performance. The immediate commander recommended a general discharge. 16. On 15 November 1990, the separation authority approved his discharge under the provision of chapter 13 of AR 635-200, and directed the issuance of a general, under honorable conditions, discharge. 17. His DD Form 214 shows he was discharged on 23 November 1990, under the provisions of chapter 13 of AR 635-200 for unsatisfactory performance with a general, under honorable conditions characterization of service. He completed 3 years of net active service this period. He was assigned Separation Code JHJ and Reentry Code 3. He was awarded or authorized the Army Service Ribbon and a marksman badge. 18. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 19. By regulation (AR 635-200), chapter 13 provides that separation action be taken when in the commander s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions. 20. 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: 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 :xx :xx :xx 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 635-200 (Then Personnel Separations and now Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 13-2a provides that Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that: (1) In the commander s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. (2) The seriousness of the circumstances is such that the Soldier s retention will have an adverse impact on military discipline, good order, and morale. (3) The Soldier will likely be a disruptive influence in duty assignments. (4) The circumstances forming the basis for initiation of separation proceedings will likely continue or recur. (5) The Soldier s ability to perform duties effectively is unlikely. (6) The Soldier s potential for advancement or leadership is unlikely. 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 based on 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) AR20230001428 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1