ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170000989 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Court statement excerpt, exhibit A * United States Senator memorandum, exhibit B * Office Of Chief of Staff response memorandum, exhibit C * DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement) exhibit D * AR 635-200 excerpt, exhibit E * DD Form 214, (Certificate of Release or Discharge from Active Duty) * Case Management Division, Army Review Board Agency (ARBA) memorandum 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, in effect, that his DD 214 be amended to reflect the more favorable discharge by making changes to blocks 24-28, change the remarks sections block 18 to state full term of service was completed. He wants back pay for the period of 31 March 2015 to 2 November 2016. He also wants the reinstatement of his GI Bill benefits associated with the more favorable discharge to include education benefits under the post 9/11 GI Bill. 3. The applicant provided: a. A self-authored statement stating that, in effect, on 18 January 2014, he was a victim of an unreasonable search and seizure committed by the Fort Wainwright Army a. Criminal Investigation Division (CID) and the Alaska State Troopers. He stated that the Army Board of Corrections for Military Records (ABCMR) has the authority to consider claims of a constitutional nature of his fourth amendment rights violation committed against him by members of the Army CID. He stated that as a result of the violation, he was incarcerated on 18 December 2014, and his military pay was stopped on 31 March 2015. He also stated that without any conviction of any offense that he was given an under other than honorable conditions discharge from the Army on 2 November 2016. b. A letter from a U.S. senator to the chief of the staff of for the Army on behalf of the applicant requesting a meeting with his chain of command. The applicant has been incarcerated for the last 19 months. c. A letter from the Army chief of staff response stating that the applicant was pending federal civilian charges and that he is in pre-trial confinement. He has been incarcerated for over three years. On 22 September 2016, the troop commander visited the applicant where he preferred charges against four members of the CID. The command does not believe there are sufficient evidence to warrant these charges. 4. Review of the applicant's service record shows: a. He enlisted in the regular Army on 15 January 2013 as an 11C (Indirect Fire Infantryman). On 19 June 2013, he was assigned to Fort Wainwright, Alaska. b. On 20 February 2015, he was a subject of a CID report. * Investigation revealed that it was reported on 17 Jan 2014 that the applicant posted a craigslist's post attempting to solicit an adult to allow him to commit a sex act on their child * On 20 January 2015, CID referred this investigation to the Federal Bureau of Investigations * On 18 December 2014, the applicant was arrested and confined to the Fairbanks Correctional Facility, Fairbanks, Alaska pending trial * He is charged with possession and distribution of child pornography and solicitation c. On an unknown date, the applicant was notified that his commander was initiating action to separate him in accordance with paragraph 14-12c of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to commission of a serious offense. d. On 8 July 2015, he acknowledged receipt of the commander's intent to separate him. The applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 14-12c of AR 635-200 due to commission of a serious offense. a. e. On 30 July 2015, he consulted with legal counsel and representation provided by the military. He acknowledged that he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded f. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to commission of a serious offense in accordance with AR 635-200, chapter 14-12c. His chain of command recommended approval. g. The separation authority approved the applicant's discharge under the provisions of paragraph 14-12c of AR 635-200, with his service characterized as under other than honorable conditions and that he is reduced to the lowest enlisted grade. The applicant was discharged accordingly on 2 November 2016. h. His DD Form 214 confirms he was discharged for misconduct (serious offense), Separation Code JKQ, under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as under other than honorable conditions. His reentry code is 3. He completed 3 years, 9 months, and 18 days of active service. 5. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. Soldiers separated under Army Regulation (AR) 635-200, paragraph 14-12c, misconduct, are assigned the Separation Code JKQ. The RE Code associated with this Separation Code is RE-3. b. Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, are assigned the Narrative Reason for Separation as "Misconduct - commission of a serious offense." 6. Title 38 section 3301 states that 9/11 Veterans Benefits for Education Assistance is for an individual discharged or released from active duty from the armed forces with an honorable discharge . 1. 7. The ABCMR corrects military records. If as a result of this correction, a financial entitlement or a debt is created, the Board's decision is transmitted to DFAS for collection or payment. For any alleged entitlement to unpaid pay and allowances, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. Such requests are addressed directly to DFAS. 8. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found no evidence of an injustice or error which would warrant making a change to the characterization of service. The Board determined based upon the available facts that the characterization of service received at the time of discharge was appropriate based upon the seriousness of the misconduct of the applicant. 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. 5/10/2019 X CHAIRPERSON Signed by 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. AR 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. Title 38 section 3301 states that 9/11 Veterans Benefits for Education Assistance is for an individual discharged or released from active duty from the armed forces with an honorable discharge. 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 1. 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.