ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20160018797 APPLICANT REQUESTS: * upgrade of his general under honorable conditions discharge to an honorable discharge * removal of the record associated with the arrest on 16 May 1991 from his military record * instruct Federal Bureau of Investigations (FBI) to remove the same record from the National Crime Information Center database APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * legal counsel statement * DD Form 214 (Certificate of Release or Discharge) * Florida Department of Law Enforcement background check * letters of character reference * certificate of recognition * certificate of graduation * certificate of appreciation 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 states through his legal counsel: a. He was young and at the time of the incident he had been dating a local German national and after the relationship ended she refused to return a ring that the applicant gave to her to wear. The applicant took matters into his own hands and entered the German national’s residence without authority to retrieve the ring. She called the local authorities and the applicant was arrested. Even though the applicant accepted non-judicial punishment (NJP) for his actions, he still felt the punishment was too harsh and it affected his attitude and performance. After other NJP actions the applicant was administratively separated from the service with a general under honorable conditions for misconduct. He eventually obtained steady work and since returning from Germany he has had no criminal incidents or misconduct. b. Recently, the applicant had applied for employment that required a background check, which he believed would not be an issue as he did not know there was any derogatory information on his record. But when the company rescinded a job offer due to the applicant having an arrest record from an arrest in Germany in 1991. He attempted to explain that NJP in the military was not the same as a criminal conviction and there were no court proceedings. 3. The applicant provides: a. A print out of the Florida Department of Law Enforcement background check dated 27 September 2016 that under the FBI criminal history record shows the applicant was arrested on 16 May 1991 for a charge of robbery that was closed with NJP (Article 15) with forfeiture of $100 per month for 1 month and reduction to private first class (PFC)/E-3, extra duty for 30 days and restriction for 45 days. b. A character reference from X__, spouse of the applicant states that she has known him for 21 years and married to him for 12 years. He is an amazing husband and provider for his family. When she relocated for her job, the applicant willingly gave up his job in order for her to pursue her career. She requests that the Board remove the Article 15 from his record as it has become a burden in finding employment. He has taken responsibility for his action, but this was a mistake from 25 years ago. c. A character reference from X__, states that he has known the applicant since 1986 and is one of his closest friends and confidants. The applicant is dependable, honest, and courteous. He is extremely responsible and competent both professionally and personally. He is always there when needed and is willing to assist others. d. Certificate of recognition for the gold standard of Cox experience for the fourth quarter 2015. e. Graduation certificate from Jones/NCTI for completion of Fiber Testing and Maintenance course. f. Certificate of appreciation for 10 years of dedicated and loyal service to Cox in 2013. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 October 1988. b. He accepted non-judicial punishment (NJP) on 31 July 1991 for failure to be at his appointed place of duty. c. He accepted NJP on 13 August 1991 for theft of property of another. His punishment included reduction in grade to PFC/E-3. d. On 13 August 1991, he submitted an appeal stating that he believed the property to be his so he could not be charge with larceny. e. On 26 August 1991, the appeal was denied by the applicant’s brigade commander. f. He accepted NJP on 13 September 1991 for without authority willfully destroyed a window to be property of the United States and broke restriction. His punishment included reduction to Private (PVT)/E-1. g. On 26 September 1991, the applicant was notified of his commander’s intent to request separation from the service under provisions of paragraph 14-12c (Commission of a Serious Offense), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The recommendation was for the applicant to be discharged with a general under honorable conditions discharge. h. After consultation with legal counsel on 26 September 1991, he acknowledged: * he understood the basis of the separation * he may have his case considered by an administrative separation board * he requested personnel appearance before the board of officers * he submitted statements in his own behalf * he requested representation by legal counsel * he may encounter substantial prejudice in civilian life * he may be ineligible for may or all benefits as a veteran under both Federal or State laws * he may withdraw his waiver up to the date of discharge j. On 10 October 1991, the applicant’s battalion commander recommended that he be separated under provisions of AR 635-200, Chapter 14, and receive a general under honorable conditions discharge. k. On 21 October 1991, the applicant’s brigade commander recommended that he be separated under provisions of AR 635-200, paragraph 14-12c, and be issued a general under honorable conditions discharge. l. The facts and circumstances surrounding the separation authority decision on the separation of the applicant under the provisions of AR 635-200, paragraph 14-12c, are not available for the Board to review. m. He was discharge from active duty on 18 November 1991 with a general under honorable conditions discharge, under the provisions of AR 635-200, paragraph 14-12c, His DD Form 214 shows he completed 3 years and 1 month of active service. 5. There is no evidence the applicant applied to the ADRB within its 15-year statute. 6. By regulation (AR 635-200), Soldiers may be separated under chapter 14 for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Soldiers are subject to separation per this section for the commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual of courts-martial. A discharge under other than honorable conditions is normally appropriate for a Soldier discharge under this chapter. However, the separation authority may direct a general discharge is such is merited by the Soldier’s overall records. 7. The Board should 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the pattern of misconduct, which include some of a criminal nature and, in the Board’s opinion, a lack of sufficient justification for the misconduct, the Board concluded there was insufficient evidence of any error or injustice which would warrant making any change to the applicant’s military record. 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, 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 (Personnel Separations – Enlisted Personnel), in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 there characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12c, states establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Soldiers are subject to separation per this section for the commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual of courts-martial. A discharge under other than honorable conditions is normally appropriate for a Soldier discharge under this chapter. However, the separation authority may direct a general discharge is such is merited by the Soldier’s overall records. 3. Army Regulation 27-10 (Military Justice), in effect at the time, action whereby the punishment or any part or amount whether executed or unexecuted is set aside and nay rights, privileges, or property affected by the portion of the punishment set aside are restored. Non-judicial punishment is wholly set aside when the commander who imposed the punishment, a successor in command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that under all the circumstances of the case, the punishment has resulted in a clear injustice. 4. Army Regulation 15-185 (Army Board for Correction of Military Records), states The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. 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. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. 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. ABCMR Record of Proceedings (cont) AR20160018797 7 1