ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20170006863 APPLICANT REQUESTS: his general under honorable conditions discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 2 Self-authored Statements * 5 Developmental Counseling Statements * 9 Military Police statements * 3 Doyon Security Services statements * Enlisted Record Brief (ERB) * Separation Packet for X___ * 2 Investigator activity statements * Memorandum for redress * Military defense counsel email * 2 Anchorage Police Report * 1 Witness statement * 8 Character statements 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 provided his first of two self-authored statements where he states, on 5 July 2009 he was facing punitive action for an incident that happened at a night club in downtown Anchorage, AK. He was accused of being a gang member and participating in gang activities, and breaking the Commanding General’s (CG) gang policy because of this one incident. He further states: a. On 3 July 2009, he was at a night club celebrating the birthday of his fiancée, and they left when the club was closing. A fight broke out and he noticed members from his unit were involved. He started pulling them out of the fight, and was struck with a weapon (gun) by an unknown civilian, but managed to take control of most unit members before shots were fired by the same unknown civilian. The police arrived, and he remained calm to direct them as to what happened. He was never cited for anything and remained cooperative the entire time. b. He was wrongfully accused of being a gang member and disorderly which resulted in his separation from the Army, but his separation packet does not have any evidence or statements showing either. He turned down an Article 15 and demanded a court-martial to exonerate himself and risking his future only to show his innocence. He did not receive the Article 15 or the court-martial. He has been on 3 deployments in his 5 years in the Army, and was attending college while waiting for his unit to deploy again. He never had any Uniformed Code of Military Justice (UCMJ) action in his career, had a long term goal to retire from the army, and against all odds that's what he intends to do. 3. The applicant provided a second self-authored statement where he states, he was at an on-post club with his wife at the same time a fight broke out. He was a team leader to some unit members, and related to one he saw in a fight on the other side of the parking lot and started pulling them out of it. Shots were fired by an unknown civilian, and law enforcement officers from the city arrived on the scene. He remained calm and directed police as to what happened. His command classified him and eight other unit personnel as gang members. He was never cited for anything and remained cooperative the entire time. He further states: a. The separation packet does not have any evidence or statements showing he was disorderly or a member of a gang, and there is no evidence of underlying misconduct. He stated, Army Regulation (AR) 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) requires the government show, by a preponderance of the evidence, that he committed misconduct before they can separate him under Chapter 14-12 (Separation for Misconduct). The government offers no evidence of underlying misconduct; merely an unproven allegation. b. His defense counsel at Fort Lewis, Washington contacted trial counsel in Alaska multiple times to ask if there was further evidence, but the prosecutor never responded. Even though not entitled to a board, you are still afforded a review of the basis for the chapter under AR 635-200. No reasonable review of the evidence could have found he committed the underlying misconduct, as there was no evidence of gang activity. He submitted a rehabilitative transfer request and an Article 138 (Complaints of Wrongs) relief request, but his command separated him before any action was taken on the request. When he woke up in morning, the command wanted him separated that morning and expedited the chapter process by 16 days. c. His attorney had been preparing the Article 138 appeal, and the exchange was completed before he received his DD Form 214 (Certificate of Release or Discharge from Active Duty) when he came to work. Prior to that he had been told he had until 16 October 2009. They did not allow him to consult with his attorney before expediting the chapter. He was not afforded any transitional counseling or benefits normally afforded general discharge recipients. He understands the first sergeant (1SG) reacted negatively to his two prior Article 138 requests and wanted him chaptered before he sought relief. d. He served five years and has three deployments. He loved serving in the Army, as it made him feel proud about himself because he was doing something to make a difference rather than just going through life. His favorite part of the Army was going on missions. His would rather stay on a deployment where the rush mixed with fear was a great thing. He learned new things from others, and the mistakes he made. 4. The applicant provides: a. U. S. Army Alaska (USARAK) memorandum, dated 20 September 2007, Subject: Soldier involvement/Participation in Gang Activity or Extremist Organization (CG/CofS Policy Statement #0-11). By policy within USARAK, Soldiers who violate the policy are subject to adverse administrative action and/or punishment under the UCMJ (Uniform Code of Military Justice). b. DA Form 4856 (Developmental Counseling Form) for date/purpose: * 18 June 2009 – Failed to be at appointed place of duty by arriving late for physical training and accountability formation * 7 July 2009 – New member welcome counseling to conduct initial performance counseling, encourage open communications * 9 July 2009 – Late arrival to formation * 27 July 2009 – Monthly performance counseling that shows the applicant was involved in an investigation for an incident that occurred downtown, and encouraged not to place himself in a situation that may lead to trouble * 13 August 2009 – Recommendation for separation under Chapter 14-12c (Commission of a Serious Offense) c. Sworn statements, in part, from members of the 28th Military Police (MP) Detachment, Fort Richardson, AK, dated 8 August 2009, show the applicant added the comment “my name is nowhere on here.” (1) Patrol X___, states he was conducting his law enforcement duties when a call requesting all available patrols for a fight in progress; he observed another patrol attempting to get a violent individual under control upon his arrival. (2) Patrol X___, stated when he arrived there were approximately 60 people and 2 military police (MP) in the parking lot attempting to detain a subject who was aggressive and combative. d. Sworn statements, in part, from members of the 164th MP Company, Fort Richardson, AK, dated 8 August 2009, show the applicant added the comment “my name is no where on here.” (1) Patrol X___, stated he witnessed two MP’s struggling with a black male who was extremely non-compliant and resistant; other patrols where trying to control an uncooperative crowd; security personnel and other patrols from other agencies arrived to assist. (2) Patrol X___, stated when he arrived he noticed a fight in progress; there were 100-150 personnel in the parking lot; all patrols on post were on the scene; the situation deteriorated quickly and additional agencies were called. (3) Patrol X___, stated she responded to a fight and observed a large crowd; a subject was very belligerent and combative; the crowd interfered; hand gestures associated with known gangs in the area, as well as threatening gestures were pointed at individual MP’s; a number of subject personnel were apprehended and transported. (4) Patrol X___, stated he was dispatched to the location; the bartender identified an individual for fighting and striking an A_ C_ worker; the individual was combative, resisting arrest and placed in hand-irons. (5) Patrol X___, stated he responded and observed 50 – 80 personnel in a fight; a black male was punching and pushing individuals; he [DR] was pushed and slammed into cars by the individual; he felt the individual go for his pistol and attempt to draw the weapon on him. e. Sworn statement, in part, from Patrol X___ of ARCTIC MP Battalion, Fort Richardson, AK, shows the applicant added the comment “my name is nowhere on here.” Patrol X___ stated, he observed a crowd leaving the establishment with yelling and making aggressive gestures; subjects were placed in hand-irons; 10 individuals were apprehended. f. Sworn statements, in part, from security officers (SO) of Doyon Security Services (DSS), Fort Richardson, AK, dated 8 August 2009, show the applicant added the comment “my name is no where on here.” (1) SO X___ stated, CPT X___ was monitoring the MP radio and a transmission was made in which an MP said "we have trouble... " and the transmission was cut off; we came to the assistance of the MP's who were clearly overwhelmed; an African American Male shouting he got pepper sprayed and he didn't have anything to do with it and saying racist comments to the MP's; he was apprehended. (2) SO X___ stated, at least two larger groups were being loud, aggressive, and belligerent; Specialist O kept running up to where the MPs were and yelling things about us being racist; APD officers and U.S. Air Force Security Forces arrived and assisted. (3) SO X___ stated, noticed 100-120 people in the parking lot; two unknown males from the crowd were pulling Specialist X___ away from two Patrols trying to calm him; APD and Security Forces arrived; Specialist X___ was defiant and was taken into custody. g. Character statements, in part, from the following individuals show: (1) X___ stated, she has known the applicant for two years and can confirm he is a man of integrity who is extremely dedicated to his family and work. He is entirely peace-loving and very dedicated to doing what it takes to care for his family and job affairs, and his family and friends. She can confirm that he is a very caring, compassionate, dedicated, trustworthy, and respectable man of his word on any given occasion. She can confirm he is very credible. (2) X___ stated, she has known the applicant for two and a half years and confirms he conducts himself with integrity and can be counted on to represent the military in a positive light. He has been dependable, reliable and always on top of things. He has gone to Iraq three times and came back with a positive attitude. The military slowed him down and taught him things he could use on the outside. He demonstrates a giving and generous nature in his free time, and demonstrated a wonderful initiative and positive attitude toward his accomplishments. He has a strong work ethic, and his interpersonal and communication skills have allowed him to develop productive relationships with family and friends. He is an effective leader and demonstrates empathy and compassion for those less fortunate. (3) X___ stated, she has known the applicant two years and has been impressed with his dedication to any endeavor and is involved in his local community and church. He is of great integrity and is extremely dedicated to work and family. He has always been a leader, the type to go to great lengths to help others, and is confident in saying he is capable of handling any situation with thoughtfulness and maturity. He is always quick on his feet with sensible reactions in all circumstances. He served his country three times and has an exceptional attitude towards the way the world works. He is a problem solver, insightful business entrepreneur, and is organized, efficient and competent. (4) X___ stated, she has known the applicant a short time and he displays sensible reactions in all circumstances. He is committed, responsible, a good listener and communicator, fair-minded, honest and trustworthy. (5) X___ stated, he was the applicant’s team leader in Fort Stewart, GA and twice in Iraq. He is a great Soldier with career goals were to become a Noncommissioned Officer and retire while getting a college education. He has great leadership and teaching skills. His separation is a loss of a great future leader. (6) X___ stated, he has known the applicant over three years and has been a great asset to his family. He does not accept people into his life and home easily, but his character prompted his heart to accept him as a son. He has never seen gang activity in the applicant. (7) X___ stated, the applicant was under his command at Fort Stewart. He showed to be a strong and knowledgeable as a team/squad leader for Soldiers. He bares nothing but good faith in the applicant, and believes the Army would suffer a great loss if he were to be put out. He has what it takes to be a leader. (8) X___ stated, the applicant is a family friend and attends the same church. He observed him to always present himself to be very conscientious, responsible, honest, caring and hard working. After many conversations, he believes the applicant to be on track to accomplish great things, he is concerned about the future of others, and has been a positive influence in the community. The applicant tried to keep his cousin on the right track and at times caused him to get into trouble. He distanced himself from his cousin and went to church more and not going out to party on the weekends. h. Applicant statement, charge sheet, and Special Court-Martial Number 3 for Private First Class X___. The applicant states, PFC X___ was chaptered out with him and six other Soldiers due to an incident at an off-post club on 3 July 2009. The gang related activity charge was dismissed before he entered the court room due to lack of evidence. Even though they had the police reports of him being in fights and creating a riot many times, but still could not charge him with anything related to gang activity because there was no evidence. There has to be evidence that shows you meet the gang related definition set by the CG on 20 September 2007. The applicant states, he was accused of the same charge for wrongfully engaging in gang activity. If he had been entitled to the court-martial he requested, he would still be in the Army to this day with 13 years in, many deployments under his belt, and working towards his retirement he was planning on. 5. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 May 2005. b. His served in Iraq from 29 October 2006 to 23 October 2007. c. On 3 July 2009, an Anchorage Police Department (APD) report shows the applicant was present at F_ nightclub when an officer responded to a call of “officer needs help” at approximately 2:39 in the morning. It shows the applicant was hand-cuffed, and had a bloody lip and blood on the left side of his nose. He stated he was standing outside the bar with Army friends trying to decide where to go, when a physical fight started on the west side of the bar, and several of his friends were involved. He attempted to pull them away when someone hit him in the head with something, which he then saw the suspect was carrying a small gun. The suspect then pistol whipped another male co-worker and the gun discharged. The applicant was transported to the APD to await detectives. (1) Ms. X___ was at the E_ nightclub from about 13:00 pm until closing time. She was talking outside with the applicant when he noticed other unit members and a group were fighting. He ran over to break up the fight, and in the process someone hit him in the face with a gun. The situation elevated and a shot was heard, and cops were called. She went to the area where they had the applicant in hand-cuffs waiting to be questioned. She was questioned as well, and drove the applicant’s car home when he was taken to the police station. The statement is dated 20 August 2009. (2) Ms. X___ was at the E_ nightclub at approximately 2:30 in the morning, and that the applicant was present there when shots were fired. It states the applicant and another person were attempting to break up the fight when the APD arrived. The statement is dated 26 August 2009. d. On 11 August 2009, two DA Form 7569 (Investigator Activity Summary) reports show that possible gang signs were noticed on the dance floor at the A_ C_ nightclub while the establishment was under routine surveillance. A fight broke out shortly thereafter between unknown individuals and everyone moved outside the nightclub. Additional law enforcement personnel were requested and arrived to assist. The situation was later controlled, cleared and documented in sworn statements by military investigators, military police, APD, and security service personnel. The applicant added the comment “I was nowhere around for this. I was on a cruise with my fiancée at the time in Fort Lauderdale, FL. Nor was I ever named to be part of the group” on one statement, and “Same here has nothing to do with me” on another statement. e. On 13 August 2009, the applicant was counseled by his first sergeant (1SG) on his recommendation for a Chapter 14-12c. The unit commander notified the applicant on initiating action to separate him under the provisions (UP) of Army Regulation (AR) 635-200, chapter 14-12c (commission of a serious offense) by reasons of assault consummated by battery, disorderly conduct; in violation of U.S. Army Alaska (USARAK) policy statement #0-11 paragraph 4(a), by wrongfully engaging in gang activity. He recommended a general under honorable conditions characterization of service, and advised him of his rights. f. On 14 August 2009, the applicant underwent a chapter physical examination and mental status evaluation. The psychologist provided a disposition, on 18 August 2009, that shows the applicant had a clear mental status, and was cleared for any administrative action deemed appropriate by the command. g. On 24 August 2009, the applicant acknowledged receipt of the contemplated action to separate him UP AR 635-200, Chapter 14-12c, and of the rights available to him. He was advised of his right to consult with counsel prior to submitting his Election of Rights, and understood that unless an extension is granted, failure to respond within 7 duty days will constitute a waiver of the rights in paragraphs 5, 6, 7 and 8 of the notice.” h. His immediate commander initiated separation against him under the provisions of AR 635-200, chapter 14-12c for commission of a serious offense (Assault consummated by battery, disorderly conduct in violation of USARAK policy statement #0-11 paragraph 4(a), by wrongfully engaging in gang activity). The commander stated the applicant has conducted himself in ways that are prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, ARs, the civil law, and time-honored customs and traditions of the Army. He recommended separation from the service with a general, under honorable conditions discharge. i. His intermediate commander recommended the separation UP of AR 635-200, chapter 14-12c. He recommended the applicant receive general (under honorable conditions) characterization service. j. On 24 September 2009, the separation authority approved the separation action with the issuance of an under honorable conditions characterization of service. k. On 2 October 2009, the morning of his discharge, along with his military defense counsel requested a redress, to the separation authority, in accordance with (IAW) the procedures of Article 138 and AR 27-10 (Military Justice – Legal Services) that in part shows: * his request was for unfair and capricious approval of his separation * he was wrongfully accused of gang behavior and disorderly conduct, and as a result, turned down an Article 15 and demanded a court-martial * his very good record and only rumors of his gang activity where discussed at a meeting with his 1SG and the special court-martial convening authority * no evidence of gang activity was cited, and the convening authority decided to continue the chapter * he was not provided the required due process during the chapter process * he deployed three times during his career of 5 years and 7 months * he requested redress for rehabilitative transfer instead of the chapter * he requested to be retained on active duty IAW his orders affording him time to file an Article 138 complaint l. On 2 October 2009, email between his Defense Counsel (DC) at Fort Lewis, WA and the Deputy Staff Judge Advocate (DSJA) for USARAK shows: (1) The DC noted the applicant’s final out was expedited to that morning from 16 October 2009. He noted the applicant was still a U.S. Soldier at that time. He requested a progress update on the UCMJ Article 138 request so appeals could be prepared. (2) The DSJA responded the Article 138 would be processed in accordance with AR 27-10. He recommended if the applicant had knowledge to be beneficial to the government in the case of US vs X___, to contact the trial counsel immediately, and to act very quickly in hopes of a potential possible resolution. (3) The DC responded that the applicant of three deployments in five years, Article 138 is a means of relief for him, as they exhaust all possible relief means available. AR 27-10 speaks in general terms and offers no express prohibitions or exclusions of where 138 cannot apply. To date, he still has not seen any evidence of gang activity, and that’s why they turned down the Article 15 and continue all possible appeals for the applicant. m. On 2 October 2009, the applicant was discharged from active duty. His DD Form 214 shows he was discharged under the provisions of chapter 14-12c (misconduct - serious offense) of AR 635-200 with an under honorable conditions (general) characterization of service. He completed 4 years, 4 months and 21 days of service during this period. n. On 3 October 2011, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his request for a change in the character and/or reason of his discharge was denied. 6. By regulation, separations under the provisions of AR 635-200, Chapter 14-12, provides policy, and prescribes procedures for separating personnel for misconduct because of the commission of a serious offense. 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 warranted. One potential outcome discussed was to deny the requested upgrade based upon the misconduct involving violence towards others and a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to his separation. However, based upon the deployment history of the applicant and the misconduct being an isolated incident within the military service career of the applicant, the Board concluded that granting clemency by upgrading the characterization of service to Honorable was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14-12 of the regulation deals with separation for various types of misconduct, which includes minor disciplinary infractions, patterns of misconduct, and commission of a serious offense. It provides that individuals are subject to separation for the commission of a serious offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a close related offense. b. An honorable discharge is a separation with honor. 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. 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) AR20170006863 10 1