ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170007844 APPLICANT REQUESTS: upgrade his under other than honorable discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two criminal record check from local police departments * four character references 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 the he believes his characterization of discharge was an error because he was a good Soldier and had never been in trouble before the incident. He believes that the discharge characterization was too harsh of a punishment for the crime he was accused. He also states that he waited to submit this request to prove himself to be a better person that what the Army portrayed him as. 3. The applicant provides: a. Columbia County Sheriff Office, Lake City, FL criminal records check, dated 14 February 2017, that showed the applicant did not have local criminal record. b. Lake City Police Department, Lake City, FL criminal records check, dated 9 March 2017, that showed the applicant did not have a local criminal record. c. Character reference from BB, dated 5 March 2017, that states the applicant was working part time for him along with three other persons cleaning doctor offices, car dealerships and daycare centers and had known him for approximately 26 months. The applicant is someone that you can depend one to show up for work and to be on time. He had always provided proper notice if he should need time off. X___ advised that he learned quickly that the applicant was a valuable member of his business team. The applicant is trustworthy and can be depended upon to complete his job without supervision. He constantly strives to achieve and surpasses any set goals and he is a morale booster for the team and keeps the team members motivated both on and off work. The applicant never complains about anything and is always a team leader. d. Character reference from X___, dated 1 March 2017, that states that he has been friend of the applicant for over 3 years. As a disabled Air Force veteran, he needed assistance and the applicant was referred to him by a terminally ill Navy veteran. The applicant is a very positive person and is a joy to be around because of his ability to interact with most veterans. The applicant has a medical conditions of his own, but he never complains and he continues to help others. e. Character reference from X___, dated 3 March 2017, that states that it is a pleasure to write this character reference for her neighbor and dear friend. She hopes it provides the Board information on how the applicant lives his life and how he treats others. She has known him for approximately 18 months and can attest to his strength of character and compassion for others. The applicant is an actively contributing member of the community and he is loved and respected within the apartment complex and at the Veteran Administration where he volunteers. The applicant assisted her with the assembly of some furniture and he would not accept any pay for his services. He is thoughtful, reliable and warm hearted person. f. Character reference from X___, dated 2 March 2017, that states the he has been a friend of the applicant for approximately 2 years. He had consistently proven himself to be loyal and dedicated both professionally and personally. As a military veteran it is appreciated to see a fellow veteran who does not give up when life knocks you down. He stays focused and is grateful for getting his life together. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 7 September 1978. b. He served in Germany from 27 April 1979 to 1 September 1981. c. He reenlisted in the RA on 4 June 1981. d. He served in Germany from 21 November 1982 to 15 May 1986. e. He reenlisted in the RA on 18 March 1986. f. Court-martial charges were preferred against him on 31 May 1991. His DD Form 458 (Charge Sheet) indicated he was charged with: * eight specifications of intent to deceive by submitting false official documents from 2 April 1990 to 21 June 1990 * eight specifications of larceny of a value of more than $100 from 2 April 1990 to 21 June 1990 * eight specifications of submitting a false official documents for approval or payment to defraud the government of monies from 2 April 1990 to 21 June 1990 g. He consulted with legal counsel on 2 August 1991 and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 10 (Discharge for the Good of the Service). He acknowledged: * his submission of the request for discharge was voluntary and of his own free will and had not been subjected to coercion whatsoever by any person * been advised of the implications that are attached to the discharge * he was guilty of the charge(s) against him or of lesser included offenses(S) * he did not desire further rehabilitation or further military service * he had been afforded the opportunity to consult with appointed counsel * he understood that if his request for discharge was accepted he could be discharge under other than honorable conditions and be furnished an Under Other Than Honorable Discharge Certificate * he will be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may expect to encounter substantial prejudice in civilian life * he may apply to the Army Discharge Review Board or the Army Board of Corrections for Military Records to request his discharge be considered for upgrade and that considerations by either board does not imply his discharge will be upgraded * he was advised that he may submit a statement in his behalf h. Consistent with the chain of command recommendation, on 6 August 1991, the general court-martial convening authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an Under Other Than Honorable Discharge Certificate and be reduced to the lowest enlisted grade of private/E-1. i. On 16 September 1991, he was discharged from active duty under the provision of AR 635-200, chapter 10. His DD Form 214 shows he completed 13 years, 10 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Overseas Service Ribbon with numeric 2 * Noncommission Officer Professional Development Ribbon with numeric 2 * Good Conduct Medal (4th Award) * Army Achievement Medal (2nd Oak Leaf Cluster) * Army Commendation Medal * U.S. Army Recruiter Badge with three gold stars * U.S. Army Gold Recruiter Badge with three sapphire stars 5. By regulation, a Soldier who had committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 6. 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 partial relief was warranted. Based upon the applicant being placed in a position of trust and he breaking that trust by committing multiple UMCJ offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 7 September 1978 until 17 March 1986.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 (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 not 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 (General Discharge) is a separation from the Army under honorable condition. When authorized it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation states a Soldier who had committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20170007844 5 1