IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230005882 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge to general, under honorable conditions * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Letter from the Department of Veterans Affairs (VA) 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 under other than honorable conditions discharge to general, under honorable conditions in support of his claim. 3. The applicant provides a character letter from Mr. of the VA Customer Service Department dated 16 March 2023, which states the applicant has proven to him that his down experiences are permanently gone and in the past, he has turned the positive corner of life, and he has become a dedicated man of faith. He deserves, without a doubt, that his discharge be upgraded. The applicant’s decision to become a man of high integrity should make the decision for an upgrade an easy one. He also outlined the applicant’s character as follows: * he has developed into a conscientious and trustworthy individual * he can be depended upon to work hard with any community or company objectives in mind * he is a punctual individual * he can easily work with a team of employees or volunteers in his community * he is not reticent about taking initiatives to help advance any company where he may be employed or volunteer in the community * he easily adapts to changes and is a quick cooperative learner 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 August 2000, beginning at grade/pay grade private 2/E-2. b. A DA Form 2-1 (Personnel Qualification Record) shows the highest grade attained by the applicant was private (PV2)/E-2. It also shows his status was: * absent without leave (AWOL) – 30 June 2002 to 8 July 2002 (9 days) * confined to “CCA” – 9 July 2002 to 16 July 2002 (8 days) * AWOL – 17 July 2002 to 19 July 2002 (3 days) c. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows he accepted nonjudicial punishment on 2 August 2001 for one specification of failure to be at his appointed place of duty and one specification of falsifying a signature with the intent to deceive on a DA Form 689 (Individual Sick Slip). His punishment included reduction to private E-1. d. A second DA Form 2627 shows the applicant accepted company grade nonjudicial punishment on 16 May 2002 for five specifications of failure to be at his appointed place of duty between on or about 17 January 2002 and 2 May 2002, and one specification of failure to obey a lawful order. The applicant was listed as a private first class and his punishment included reduction to private E-2. e. On 29 May 2002, the applicant underwent a medical evaluation for the purpose of separation which indicated he was generally in good health; however, he listed medical challenges experienced in the military. He was subsequently marked qualified for service, to include separation/chapter. * DD Form 2807-1 (Report of Medical History) * DD Form 2808 (Report of Medical Examination) f. A DA Form 3822-R (Report of Mental Status Evaluation), dated 5 June 2002, confirmed the applicant was command referred for a mental evaluation due to discharge. The physician noted in the remarks, the applicant was psychiatrically cleared for any administrative action deemed appropriate by the Command. The evaluation outlined the following: * normal behavior and fully alert * fully oriented and unremarkable mood * clear thinking process, normal thought content, and good memory g. On 12 June 2002, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for a pattern of misconduct and notified him of his rights. The applicant acknowledged receipt of the notification of separation action on the same day. The reasons for the commander’s proposed action were: he received a Field Grade nonjudicial punishment for failure to report; he received a Company Grade nonjudicial punishment for failure to report on three separate occasions and forgery; he received numerous negative counseling statements for failure to report; and he showed disrespect to noncommissioned officers. His commander recommended he receive an under other than honorable conditions discharge. He further understood: * the separation authority may direct that his service be characterized as honorable; or general, under honorable conditions * he had a right to consult with consulting counsel and/or civilian counsel * he had a right to obtain copies of documents that would be sent to the separation authority supporting the proposed separation * he was entitled to a hearing before an administrative separation board if he was being considered for separation under other than honorable conditions * if he qualified for an administrative separation board, he could request counsel, appear before the board, and present written statements in his own behalf * he may submit a conditional waiver of his right to have his case heard by an administrative separation board h. On 20 June 2002, after consulting with legal counsel, he was notified of the rights available to him and the effect of waiving said rights; he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him; he may be ineligible for many or all benefits as a Veteran under both Federal and State laws; and he may apply to the Army Discharge Review Board or the ABCMR for upgrading. He elected his rights by: * waiving consideration of his case by and administrative separation board * waiving his right to submit a conditional waiver of his right to have his case considered by an administrative separation board * waiving a personal appearance before an administrative separation board * electing not to submit statements in his own behalf * waiving representation at the administrative separation board i. On 20 June 2002, the immediate commander-initiated separation action against the applicant for patterns of misconduct. He recommended that his period of service be characterized as under other than honorable conditions. The intermediate commanders recommended approval. j. On 5 August 2002, the separation authority (Brigade Commander) approved the discharge recommendation for immediate separation under the provisions of AR 635- 200, Chapter 14, paragraph 14-12b for a pattern of misconduct. He would be issued an under other than honorable conditions discharge. k. Orders 218-0010 dated 5 August 2002, discharged the applicant from active duty with an effective date of 13 August 2002. l. On 13 August 2002, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 11 months, and 6 days of active service with 20 days of lost time. He was assigned separation code JKA and the narrative reason for separation listed as “Pattern of Misconduct,” with a reentry code of 3. It also shows he was awarded or authorized: * National Defense Service Medal * Army Service Ribbon 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-5), in effect at the time, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 7. By regulation (AR 635-200), action will be taken to separate a Soldier for misconduct, such as a pattern of misconduct, when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. This regulation provided memorandum format for notification of separation when the notification procedure was used; memorandum format for notification of separation for conditional waiver; and memorandum format for notification of separation when the administrative board procedure was used. The applicant was notified in the conditional wavier notification that the separation authority could direct a discharge characterization of honorable or a general, under honorable conditions characterization. 8. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 9. 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: 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 the character letter of support provided by the applicant noteworthy and commended the applicant for his contributions to his community and being a man of integrity and character. However, the Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The Board noted the applicant’s service record exhibits numerous instances of misconduct from multiple Article 15’s, forgery of a sick call slip to include absent without leave during his enlistment period for 1 year, 11 months, and 6 days of active service with 20 days of lost time. Furthermore, the Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets 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 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 of the regulation states action will be taken to separate a Soldier for misconduct, such as a pattern of misconduct, when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. d. Chapter 2 of this regulation provided memorandum format for notification of separation when the notification procedure was used; memorandum format for notification of separation for conditional waiver; and memorandum format for notification of separation when the administrative board procedure was used. 5. 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) AR20230005882 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1