ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20160017764 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge) to show his service is characterized as general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference Statements (x11) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 makes no additional statements. 3. According to an enlistment contract in the available record, the applicant enlisted in the Regular Army (RA) on 16 April 2007. The DD Form 214 appears to incorrectly list his enlistment date as 18 October 2005. He held military occupational specialty 92G (Food Service Operations). He served in Iraq from 6 December 2008 to 3 June 2009. 4. On 15 January 2010, the applicant acknowledged receipt of court-martial charges preferred against him. The highest grade held was sergeant (SGT/E5). 5. On 25 January 2010, the applicant’s commander provided a memorandum, “To Whom It May Concern,” stating the applicant performed flawlessly since he joined the unit in Iraq. While supporting the battalion he was recognized for outstanding support of Key Leaders Engagements with Iraqi Nationals. He never failed a mission he was given and never expressed that a mission was too difficult for him and his section. He could give him the difficult missions and know they would get accomplished beyond standards. He was very reliable and he had a positive attitude. He was well respected 1. by his peers and subordinates. He never had any complaints about the applicant. He displayed loyalty in supporting the company and the battalion. 6. On 12 April 2010, court-martial charges were preferred against the applicant for on 7 January 2010: * engaging in inappropriate touching of the breast and kissing the neck of a female Soldier * engaging in touching of the buttocks of a female Soldier * when questioned by Military Police Investigators, he made a false official statement indicating that he did not do it, which was intent to deceive 7. On 12 July 2010, he consulted with counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations). He acknowledged he understood the elements of the offense he was being charged with and the ramifications of an under other than honorable conditions discharge. 8. On 21 May 2010, he provided an apology statement indicating he was apologizing to his commander and the Army, his goal was to retire from the military and protect his country. He took his job seriously and kept it professional, to teach and train Soldiers you must have God in you. He wished he had another chance to make it right. He was not perfect, but he was striving for professionalism, if given another chance he would be stronger, wiser, and mentally tougher. He had a beautiful wife and family, he would never do anything to cause harm or grief to his family or the Army 9. On 15 July 2010, the appropriate authority approved his request for discharge in lieu of trial by court-martial. He directed the applicant be separated under other than honorable conditions. 10. His DD Form 214 shows on 30 July 2010, he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial. He completed 3 years, 3 months, and 15 days of net active service this period. He also completed honorable service from 16 April 2007 to 24 February 2008. 11. The applicant provided eleven character references with his application that were considered at the time of his discharge. These individuals are friend’s co-workers, peers, family members, and a minister of his church. They all speak very highly of the applicant and give personal stories of how he has affected their lives. His wife and granddaughter provides statements that express the character of the man. All of these individuals speak about his love for the Army, his country, and people in general. 12. The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 1 June 2011, the ADRB reviewed and denied the applicant's request for an upgrade. The ADRB determined that the applicant's discharge was proper and 1. equitable and that the discharge was properly characterized as under other than honorable conditions. 13. Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. Chapter 10 states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge in lieu of trial by court-martial. Charges were filed against the applicant for inappropriately touching and kissing a female Soldier and he requested discharge to avoid a felony conviction. As a result, he was issued an under other than honorable conditions discharge. 14. 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 guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for 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. 1535874 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 Army Board for Correction of Military Records (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. Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 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. a. 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.