ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170001391 APPLICANT REQUESTS: An upgrade of his general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * character reference letter 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: a. He is not a perfect man and he does not claim to be one. His request for an upgrade is based on what his military conduct file states. He was persecuted and held accountable for his actions as a Soldier. As a leader, he should have known better. He only received credit for 9 years and 6 months. It was clear that his entry date and separation date are almost identical. At the time of his separation, his counsel was only interested in her permanent change of station move than some Afro-American noncommissioned officer (NCO). Counsel only produced the texts and voice mail of his accusers and stated they were encouraged by senior NCO’s and officer to put him [applicant] in his place. Verification shows he was on leave at the time and several witnesses attested on his behalf. b. He feels that he was not treated fairly and justly and was being shoved out of something he committed his life to while stationed in Germany. He was demoted and striped away of his military family of the last 10 years. He is not that person the record states he is. He had never been violent towards any woman as the statement claims. He never used his positon or rank to gain pleasure or any other thing of such magnitude while serving as a leader. He is only at fault for being a compassionate and understanding man. This upgrade will help him move forward in life. 3. The applicant provides a letter, dated 13 January 2010, wherein an Army commissioned officer attested to the fact that he had known the applicant since 1994. He believed the applicant was a leader among his peers and always strived to achieve excellence in every aspect of his life. The applicant set an example as both a Soldier and NCO. He would recommended the applicant for any position of responsibility. 4. A review of applicant’s records show: a. He enlisted in the Regular Army (RA) on 27 July 1993. b. He served in Southwest Asia from 1 January to 5 May 1994. c. He reenlisted in the RA on 15 February 1996, 22 March 1998, and 27 November 2000. d. He was promoted to staff sergeant/pay grade E-6 on 1 September 2002. e. He accepted nonjudicial punishment on 31 March 2003, for assault, indecent assault, committing fraternization, adultery, indecent exposure, and unlawful entry. His punishment consisted of reduction to pay grade E-5, a forfeiture of pay, and extra duty for 45 days. He elected to appeal the punishment and submit additional matters. The appeal was denied on 7 April 2003 and the imposing authority directed filing of the punishment in the applicant’s performance fiche. f. On 9 May 2003, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for commission of a serious offense for the following reasons: committing fraternization, assault, indecent assault, adultery, indecent exposure, and unlawful entry. He advised the applicant of his rights. g. On 15 May 2003, after consulting with counsel, he acknowledged receipt of the proposed separation action and its effects, the rights available to him, and the effects of any action taken by him in waiving his rights. 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 h. Following this acknowledgement, his immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for commission of a serious offense. The intermediate commander recommended approval with the issuance of an under other than honorable conditions discharge. i. On 8 July 2008, the staff judge advocate recommended approval of the chapter 14-12c, with a general discharge. He stated the applicant submitted a Request for Conditional Waiver on 30 June 2003. His chain of command recommended approval of the conditional waiver with a general, under honorable conditions, discharge. j. On 11 July 2003, the applicant was discharged in pay grade E-5. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct. He completed 9 years, 11 months, and 15 days of active service. His service was characterized as under honorable conditions (general). k. His DD Form 214 also shows he entered active duty on 27 July 1993 and was separated on 11 July 2003. It further show she had continuous honorable service from 19930528 to 20011205. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal (2nd Award) * Arm Good Conduct Medal (2nd Award) * National Defense Service Medal (2nd Award) * Armed Forces Expeditionary Medal * Southwest Asia Service medal with one bronze service star * Army Service Ribbon * Driver and Mechanic Badge with Operator S Bar 5. On 9 June 2008, the Amy Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his request for an upgrade. 6. By regulation, misconduct includes minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 7. 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 serious nature of the misconduct, the Board concluded that the characterization of service received at the time of discharge was more than fair and just. Therefore, the Board found no error or injustice which would warrant correcting the 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 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. 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) AR20170001391 5 1