BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004662 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004662 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC97-08324 on 8 September 1998 and Docket Number AR20130000328 on 8 August 2013. ______________x___________ CHAIRPERSON 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004662 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his earlier request for an upgrade of his general discharge to fully honorable. He also requests correction of the narrative reason for separation. 2. The applicant states aside from one incident, he had an impeccable career due to his multiple duty assignments and tasks. He has since marked himself into a solid citizen within his community. He also states: a. He served in the Army for 14 years. The reason for the discharge was a positive urinalysis given in January of 1996. He received a special court-martial on 29 May 1996 and he was discharged on 23 September 1996, under the provisions of chapter 14. He understands the Board has the authority to access his military file and pardon his court-martial (conviction). He also understands the Board has the authority to clear the charge on his employment record stating the reason for the chapter 14, which permeates his employment background check. He is requesting to have this indiscretion removed from his military record and the National Agency Check Registry. He has submitted a request to Senator T____ K___. When he received the request back, his representative stated he didn't have the authority to waive or pardon this request for action to be removed from the military or employment record because he didn't have the jurisdiction. Additionally, he wasn't able to have the information removed from the NAC (National Agency Check) concerning his employment background. b. He tried to have this unfortunate and crippling information removed twice by previous Members of Congress within his district, but he was denied. He has severe unemployment issues, he is not being hired or he is being terminated from certain agencies for positions for which he was highly qualified. For example, he had an interview in January 2016 with Community Corrections, Chesterfield, County, VA, for the position of Probation Officer Male, Pre-Trial Services. He was asked by the interviewer/supervisor on 29 January 2016 to come back for a second interview, on 5 February 2016. However, on 2 February 2016, he was informed that he was disqualified for the second interview due to a negative background check. That person also stated they were strongly considering him for the position due to his experience. He was expected not to have any criminal blemishes in his background for employment due to the nature of the position, and human resources policies in Chesterfield County. c. He has been reformed for 20 years. He has a supportive wife and they have raised three college-educated children, he owns his home, and he received a bachelor's degree in Human Services from Virginia State University in 2004. He believes that he has paid dearly for this career blunder. He is still a solid hardworking citizen within his community in Chesterfield County. He was asked by Chesterfield County Human Resources to place that situation on further applications. If he were to apply for other positions, this misfortune discredits his chances for obtaining a promotion. He is pleading to this Board to have this discredit taken off his military and employment record because it disrupts his chances for helping his family by upgrading his income, staying within the mainstream of the economy, and also enhancing his chances of upgrading his disability from the Veterans Administration. Copies of all documentation for the request of “Justice Pardon” and the adjustment of military records/discharge were submitted to President Obama and the Secretary of the Army. 3. The applicant provides a Petition for Pardon to the President of the United States with character affidavits and Authorization for Release of Information. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-08324 on 8 September 1998 and Docket Number AR20130000328 on 8 August 2013. 2. The applicant provides a Petition for Pardon to the President of the United States with character affidavits and Authorization for Release of Information. This is considered new evidence that warrants consideration by the Board. 3. In his Petition for Pardon, the applicant requests removal of his name from the titling block of a U.S. Army Criminal Investigation Command (USACIDC) Report of Investigation (ROI). His request is premature: a. Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the DOD) provides a uniform standard for titling and indexing subjects of criminal investigations in the DOD under the authority of the DOD Inspector General, in accordance with Appendix 3 of Title 5, United States Code and DOD Directive 5106.1 (Inspector General of the DOD) contains the authority and criteria for titling decisions. It states, in pertinent part, that titling only requires credible information that an offense may have been committed. The primary purpose for titling an individual as the subject of a criminal report of investigation is to ensure that information contained in the report can be retrieved at some future point in time for law enforcement and security purposes. This is strictly an administrative function. Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the procedure to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. b. The applicant's request to the ABCMR is premature because paragraph 2-5, Section II, Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states the Board will not consider an application if it determines that an applicant has not exhausted all administrative remedies available to him/her. There is no evidence that the applicant in this case has petitioned the U.S. Army Criminal Investigation Command, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253, and he was denied relief. As a result, this issue will not be discussed further in this Record of Proceedings. 4. The applicant enlisted in the Regular Army (RA) on 11 September 1981 and he held military occupational specialty (MOS) 94B (Food Service Specialist). He served in Korea from April 1983 to April 1984. 5. He was honorably released from active duty on 10 September 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years of active service. 6. After a break in service, he enlisted in the RA for 3 years on 22 October 1986. He also executed a 4-year reenlistment on 17 August 1988. He served in Germany from 14 November 1988 to 18 December 1991. He was promoted to sergeant/E-5 on 1 June 1989. 7. Following completion of his Germany tour, he was reassigned to Fort Lee, VA, where he executed a 2-year reenlistment on 18 May 1992. He was promoted to staff sergeant/E-6 on 1 February 1993. 8. On 14 May 1996, he was arraigned at Fort Lee, VA, at a special court-martial for one specification of wrongfully using cocaine between on or about 21 December 1995 and 5 January 1996. The court found him guilty and sentenced him to a forfeiture of $685 pay for 2 months and reduction to specialist four/E-4. On 11 September 1996, the convening authority approved the sentence but deferred the forfeiture of $685 pay for 2 months on 28 May 1996. 9. On 2 July 1996, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense. The specific reason cited was the wrongful use of illegal drugs. The commander recommended an under other than honorable conditions discharge. 10. On 3 July 1996, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a separation board and/or a personal appearance before a separation board and he elected not to submit a statement in his own behalf. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 11. In his statement, the applicant requested the commander review the separation packet carefully because he believed there was sufficient evidence of an extreme and grave injustice occurring in the military system. This injustice would alter his life. 12. Following the applicant’s acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12c, AR 635-200, for misconduct. The immediate commander recommended an under other than honorable conditions discharge. He stated: * the applicant was given a urinalysis on 6 January 1996 after returning from leave and on 24 January 1996, the command was informed that he tested positive for cocaine * he was suspended from drill sergeant status on 30 January 1996 pending a full investigation * on 6 March 1996, he was read an Article 15 for the wrongful use of illegal drugs; however, he refused and asked for a court-martial * a special court-martial convened on 13 and 14 May 1996 and found him guilty; the court convicted him and sentenced him to a reduction in pay grade and a forfeiture of pay * his serious misconduct as a Soldier, NCO, and drill sergeant are not in keeping with military policies and discipline 13. His intermediate commander recommended the elimination action be heard by an administrative separation board and that the applicant receive a general discharge for the misconduct. 14. On 29 July 1996, the applicant was notified to appear before an administrative separation board that would convene on 14 August 1996 to determine if he should be separated from the Army. He was also informed that a copy of the investigation packet and separation proceedings had been provided to his attorney. The applicant acknowledged receipt of this notification. 15. On 9 September 1996, the applicant submitted an unconditional waiver of his right to a hearing before an administrative separation board. He acknowledged he understood he may be separated with a general discharge. He further acknowledged that he had the opportunity to consult with counsel who advised him of the potential impact of a general discharge. However, the decision to waive the board was his own. 16. On 13 September 1996, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate. 17. On 23 September 1996, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, with a general discharge. He completed 9 years, 11 months, and 2 days of net active service this period with 3 years of prior active service. His DD Form 214 also shows in Item 26 (Separation Code) "JKK" and in Item 28 (Narrative Reason for Separation) "Misconduct." 18. On 14 January 2000, the Army Discharge Review Board (ADRB) reviewed his discharge. After careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged. The ADRB denied his petition for an upgrade of his discharge. 19. On 8 September 1998, the ABCMR reviewed his petition for an upgrade of his discharge and the setting aside of his court-martial conviction. The Board found no evidence to support granting him the requested relief. 20. On 8 August 2013, the ABCMR considered his request for an upgrade of his discharge and found no basis for granting him the requesting relief. 21. He provides a Petition for Pardon to the President of the United States with character affidavits and Authorization for Release of Information. He requested the President grant him a “Pardon” for the special court-martial conviction that was adjudged on 14 May 1996. He highlighted his personal and professional life, education, and career. He also provided character reference letters from various individuals who described the applicant as: * an individual with a respectable moral character who made a mistake in the past, but has since learned from the mistake and improved his life * having experienced many tragedies during his military service, including the death of several family members * having lived a model life since his discharge and having raised a wonderful family REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. 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. 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty. SPD code JKK is the correct code for Soldiers separating under the provisions of AR 635-200, chapter 14, as a result of misconduct (serious offense – illegal drugs). DISCUSSION: 1. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 2. The evidence of record shows the applicant, an NCO holding the rank of SSG and performing duties of drill sergeant, committed a serious offense in that he wrongfully used illegal drugs. Accordingly, his commander initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The applicant was advised of his rights and he understood the implications of his actions. He first elected consideration of his case by an administrative separation board but he then submitted a waiver. Generally, a discharge under other than honorable conditions is appropriate for a Soldier discharged under chapter 14-12c. However, it appears the separation authority considered his years of service, accepted his waiver, and ordered the issuance of a general discharge. 4. His narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of AR 635-200 due to misconduct, commission of a serious offense, abuse of drugs. Absent his misconduct by wrongfully abusing drugs, there was no fundamental reason to process him for discharge. The underlying reason for his discharge is misconduct. The only valid narrative reason for separation permitted under this paragraph is "misconduct" and the appropriate SPD code associated with this discharge is "JKK" which are correctly shown on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004662 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004662 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2