IN THE CASE OF:
 
  BOARD DATE: 29 August 2023 
 
  DOCKET NUMBER: AR20230007204 
 
 
APPLICANT REQUESTS:  upgrade of his general, under honorable conditions discharge to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record), 20 March 2023. 
 
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 it has been over 10 years since his discharge and a change of character would be helpful for him and his daughter. Since his discharge he was earned a degree, had a daughter, and has been a law abiding citizen. He wants to provide more for her. 
 
3.  The applicant provided his application with a self-authored statement outlined above. 
 
4.  A review of the applicant's service records shows: 
 
 a.  On 27 February 2012, he enlisted in the Regular Army for 4 years and 8 weeks at age 27. He completed Basic Combat Training and he was assigned to B Company, 305th Military Intelligence Battalion for Advanced Individual Training (AIT) at Fort Huachuca.  
 
 b.  While at AIT, he was counseled: 
 
• on 1 June 2012 for being late to 1700 hours formation at the drill pad 

• on 7 June 2012 for failing to follow a direct order by having a cell phone while on duty on 7 June 2012 

• on 20 June 2012 for being drunk in the barracks during Phase IV training on 16 June 2012 


• on 21 June 2012 for loss of clothing items during a clothing bag inspection 

• on 6 July 2012 for violation of Phase IV training restrictions-being on the smoking pavilion on the evening of 3 July 2012 

• on 10 July 2012 for failing to complete assigned homework 

• on 13 July 2012 for leaving an unsecured door on 12 July 2012 


 
 c.  On 18 July 2012, he accepted company grade nonjudicial punishment (NJP) under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to 1700 hours accountability formation on 1 June 2012; consuming alcoholic beverages while under Phase IV status on 16 June 2012; and for being present in a designated smoking area while under Phase IV training status. His punishment consisted of forfeiture of $347.00 pay for 1 week, 14 days of restriction and 14 days of extra duty, and an oral reprimand. He did not appeal this punishment. 
 
 d.  While at AIT, he was further counseled: 
 
• on 6 August 2012 for failing to report for bed check on 4 August 2012 

• on 16 September 2012 for failing to maintain grooming standards (shave) 

• on 25 September 2012 for failing to report for bed check on 21 September 2012 

• on 17 October 2012 for academic probation and recommendation for relief from the 35T course 

• on 5 November 2012 for failing to report to 0730 hours formation 

• on 12 November 2012 for failing to report to a CIF appointment 

• on 14 December 2012 for failing to report and disrespect or the perception of continued disrespect 

• on 14 January 2013 for giving a false accountability report 

• on 11 February 2013 for failing to go to bed check 

• on 12 February 2013 for alcohol in the barracks 


 
 e.  On 12 February 2013, he was given company grade supplementary NJP under the provisions of Article 15 of the UCMJ. He was reduced to private/E-1 and forfeiture of $353.00. 
 
 f.  He was counseled: 
 
• on 20 February 2013 for being late to 0500 hours PT formation 

• on 20 February 2013 for recommendation for chapter separation due to patterns of misconduct 


 
 g.  On 28 February 2013, he underwent a mental status evaluation. A DA Form 3822 (Report of Mental Status Evaluation) shows the Chief Psychiatrist Services, Raymond W. Bliss Army Health Center, Fort Huachuca, AZ, evaluated him for 
clearance for separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12 as requested by his command. The report reads, in part: 
 
  (1)  He was fit for duty, he had no obvious impairments, he was cooperative, his perception was normal and was unlikely to be impulsive or dangerous.  
 
  (2)  It was the opinion of the examining psychiatrist that he could understand and participate in administrative proceedings, and he could appreciate the difference between right and wrong. He noted no evidence of a disorder that would limit his potential to succeed in the military and cleared him to participate in advanced military training. 
 
  (3)  The examining psychiatrist further noted as a result of interview and review of records and MSE revealed no significant symptoms of depression, anxiety, or psychosis and cleared him for chapter 14-12b separation, or any other administrative actions deemed necessary by the command. 
 
 h.  On 3 May 2013, he provided his commander a memorandum request to remain in the Army. It reads in part: 
 
• he arrived on 11 May 2012 to AIT and felt he was adapting well to the new rules 

• he made poor decisions and did not place the blame on anyone but himself 

• it was his dream to be a Soldier and he lost 70 pounds to enter basic training 

• he is presently the hold platoon guide and learns more and more how to be a leader and to be a positive asset for the Army 

• he has accepted responsibility for his counseling and NJP 

• he will not repeat his behavior again 


 
 i.  On 7 May 2013, the Commanding Officer, B Company, 305th Military Intelligence Battalion, notified him he was initiating action to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, and recommended he receive a general under honorable conditions characterization of service. His commander stated the following reasons for his proposed action were: on 15 March 2013 he used inappropriate language in formation; on 7 March 2013, his room was substandard during health and welfare inspection; on 20 February 2013, he was late to PT formation; on 14 January 2013, he made a false official statement during accountability formation, stating all Soldiers were accounted for when he knew such statement was not true; on 14 December 2012, he was disrespectful in language and deportment to a noncommissioned officer; on 5 November 2012, he failed to report to 0730 hour formation; on 25 September 2012, he failed to follow the company SOP and be in his room during 2350 hours bed check; on 16 September 2012, he failed to shave; 
on 10 July 2012 he failed to complete his homework assignment; on 3 July 2012 he was seen smoking while in Black Phase IV; on 21 June 2012, he was missing items during his clothing bag inspection; on 17 June 2012, he was drunk in the barracks while in Black Phase IV; on 7 June 2012, he had his cell phone on him during duty day which was against company policy.   
 
 j.  On 7 May 2013 (stamp dated 24 April 2013), he acknowledged receipt of his commander's separation notification and elected his rights. He declined his right to consult with consulting counsel and representation by military counsel; he submitted statements in his own behalf. He understood that he may expect to encounter substantial prejudice in civilian life if a discharge general, under honorable conditions was issued to him. He further understood that as the result of issuance of a discharge general, under 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. 
 
 k.  On 8 May 2013, the applicant's company commander initiated separation action against him for a pattern of misconduct. The company commander recommended approval of separation under Army Regulation 635-200, chapter 14-12b, for a pattern of misconduct, and recommended his service be characterized as general, under honorable conditions. 
 
 l.  On 8 May 2013, his intermediate commander recommended approval of his separation with a general, under honorable conditions characterization of service. 
 
 m.  On 13 May 2013, the separation authority (Commanding Officer, 305th Military Intelligence Battalion) directed his discharge under provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct, with issuance of a general, under honorable discharge certificate. He further directed the Soldier not to be transferred to the U.S. Army Reserve Inactive Ready Reserve. 
 
 n.  On 2 July 2013, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct, with issuance of a general, under honorable discharge . He completed 1 year, 4 months, and 6 days of net active service. He was awarded or authorized the National Defense Service Medal. He was not awarded a military occupational specialty.  
 
5.  On 23 January 2015, the Army Discharge Review Board found his discharge was both proper and equitable and voted not to change his characterization of service.  
 
6.  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, 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to a pattern of misconduct (NJP, substantial negative counseling) with a general discharge. The applicant provided multiple character reference letters in support of a clemency determination; however, the Board determined those letters do not outweigh his misconduct. Based on 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 
 
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. 
 
  8/29/2023

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 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) This regulation sets policies, standards, and procedures to ensure the readiness and-competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. 
 
 a.  Honorable discharge. 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.  General discharge. 
 
  (1)  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: 
 
  (2)  A characterization of under honorable conditions may-be issued only when the reason for separation specifically allows such characterization. It will not be issued to soldiers solely upon separation at expiration of their period of, enlistment, military service obligation, or period for which called, or ordered to AD.  
 
 b.  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. 
 
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 (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.  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.  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//