ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170012691 APPLICANT REQUESTS: upgrade his general under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Basic Law Enforcement Training Certificate * CompTIA certification certificates; Server, Network, A+, Mobility * Microsoft training certificates; Window 7, Microsoft Certified Professional, Networking Fundamentals, Mobility and Device Fundamentals, Security Fundamentals, Windows Operating System Fundamentals * Master of Science for Cyber Security diploma and transcripts from Liberty University * Bachelor of Science for Computer Information Technology diploma and transcripts from Methodist University 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 that up to the point of his discharge he was a good troop. He was a member of the U.S. Army Europe Honor Guard. He had borrowed a fellow Soldier’s long distance calling card with permission and later the individual turn the tables on him and reported it stolen. His command believed the other Soldier, at time the applicant was a specialist/E-4. Since his discharge, he has obtained a basic law enforcement certificate, bachelor degree and a master degree in Cyber Security with a grade point average of 3.58 and numerous Information Technology certifications. He also had been teaching Cyber Crimes courses (Digital Forensics, Data Recovery, and Password Recovery) at Fayetteville Technical Community College. The general discharge is holding him back from a career move. 3. The applicant provides his training certificate for Basic Law Enforcement, his diplomas and transcripts for Master of Science in Cyber Security from Liberty University and Bachelor of Science in Computer Information Technology from Methodist University, as well as numerous certifications from CompTIA and Microsoft to show his adult continuing education. 4. A review of his service records shows: a. He enlisted in the U.S. Army Reserve (USAR) on 24 February 1990. b. He mobilized on 20 September 1990 and served in Southwest Asia - Saudi Arabia from 5 November 1990 to 10 March 1991. c. He was honorably released from active duty on 19 March 1991. His DD Form 214 shows he completed 6 month of active service. It also shows he was awarded or authorized Army Service Ribbon, National Defense Service Medal, Army Lapel Button, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). d. He was discharged from the USAR on 9 October 1991 to enlist in the Regular Army (RA). He enlisted in the RA on 10 October 1991. He served in U.S. Army Europe – Germany from 5 February 1992 to 4 February 1994. e. He accepted nonjudicial punishment on 25 June 1992 for two specifications of with intent to defraud, then knowingly that the pretenses were false, and by means thereof did wrongfully obtain services from AT&T a value of about $363.49 and MCI Company a value of about $634.70. His punishment included reduction to private/E-2. f. On 20 July 1992, the applicant was notified that action was initiated pursuant to paragraph 14-12c (commission of a serious offense), Army Regulation (AR) 635-200 (Personnel Separations) to separate him from military service for misconduct- commission of a serious offense and that he may be issued a general under honorable conditions discharge. g. After consulting with legal counsel on 20 July 1992, he acknowledged: * he had been advised of the basis for the contemplated action to separate him from the service under the provisions of chapter 14-12c, AR 635-200 and its effects * he may submit statements in his own behalf * he may expect to encounter substantial prejudice in civilian life * if he received a discharge that was less than honorable he may apply to the Army Discharge Review Board or Army Board for Correction of Military Records for upgrading h. He submitted a statement in his own behalf that stated that if he were to be discharged from the service that it should be an honorable discharge because he deployed to a combat zone without completing Advanced Individual Training in support of Operation Desert Storm, he had received numerous awards and recognitions for his performance and statements from his former squad and team leaders. He had been advanced to the grade of specialist/E-4 and had no Article 15s up to that point in his career. He understood that what he did was both unethical and uncalled for. i. On 20 July 1992, the applicant’s unit commander initiated separation under the provisions of paragraph 14-12c, AR 635-200 for misconduct-commission of a serious offense and recommended the applicant discharged with a general under honorable conditions characterization of service. j. Consistent with the chain of command recommendations, the separation authority approved the separation packet and directed the applicant be discharge under the provisions of paragraph 14-12c, chapter 14, AR 635-200 for misconduct-commission of a serious offense and be issued a General Discharge Certificate. k. He was discharged from active duty on 10 August 1992 with a general under honorable conditions characterization of service for misconduct-commission of a serious offense. His DD Form 214 shows he completed 10 months and 1 day of active service. It also shows he was awarded or authorized: * Army Commendation Medal * National Defense Service Medal * Army Service Ribbon * Southwest Asia Service Medal with 2 bronze stars * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (45 Cal) * Sharpshooter Marksmanship Qualification Badge with Piston Bar (9 mm) * Kuwaiti Liberation Medal 5. 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. 6. In reaching is 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements for the Board to consider. He was discharged for criminal offenses and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012691 5 1