ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20170013966 APPLICANT REQUESTS: * an upgrade to his under other than honorable conditions discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge ) * Character Reference Letters 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 at the time of his discharge he was very young and did not fully understand what was happening. He found himself in a myriad of situations reflecting poorly on him. He was a victim of racial discrimination and had no choice but to take what was handed to him, this was hurtful and he has anguished over it since. He takes responsibility for his actions, he has grown in Christ and as a person since this scenario and he is hoping that the Army will see fit to upgrade his discharge. 3. The applicant provides: a. Character reference letter from Dr. X___ states he has known the applicant for about five years, first as a pastor and then as a friend. He has been impressed with his integrity as a man. He has lived a very disciplined life seeking to reach realistic goals that he has established for himself. b. Character reference letter from X___ states he is the proud nephew of the applicant who has been a positive role model and taught him so many valuable lessons in life. As he was growing up, he did everything he could to make sure his education was number a. one. As a father of two he couldn’t think of a better way to thank his uncle than to make his son’s middle name the same as the applicants. His kids look up to the applicant and are always glad to see him. c. Character reference letter from X___ states he met the applicant about 7 -8 years ago in Alcoholics Anonymous. He has been sober the entire time and has worked the 12 step program. He is honored to know the applicant and hopes to continue staying in touch with him since his move to San Francisco. They continue to help other alcoholics together. d. Character reference letter from X___ states he had the pleasure to know the applicant for over 20 years, in that time he has known him to continuously hold 2 jobs at a time. He has paid his bill and has had a good relationship with his landlords. He stated the applicant keeps up his residence and appearance with the highest of regard for himself and his community. He is always on time and dependable, willing to lend help at a moment’s notice if at all possible. He’s smart and patient and does not rush to judgement. e. Character reference letter from X___ states the applicant is a house manager for a Transitional house for young men in active recovery. She states the applicant has also helped the foundation with many activities like the annual gala. He has worked with volunteers and they have appreciated his sincere attitude and desire to give back to the community. Those who have met him are eager to volunteer with him again and again. f Character reference letter from X___ states he found the applicant to be a responsible and motivated individual. He has impressed him with his willingness to help others, mentor men that are new to recovery, and share his story honestly with others. g. Character reference letter from X___ states they are both in recovery from addiction and working hard to overcome past criminal behaviors, and they have taken several steps to accomplish putting their old behaviors in the past including attending AA meetings together and working in group classes which were mandated through Adult probation of San Mateo County so that they may discover how they can change. During that time, she has gotten to know the applicant quite well and can thoroughly vouch for his character and abilities. She states he is a pleasure to work with because his pleasant and positive attitude can make nearly any work seem fun and interesting. h. Character reference letter from X___ states the applicant is currently working for UPS in San Francisco. He is following all the rules of the programs which include mandatory 12 step meetings, weekly house meetings, curfew and various assigned household chores. He is supportive of his house members and is an asset to the program. He was previously the House Manager at X___ House, one of the men’s transitional houses that is associated with the Bridges Program. He held this position for over a year. g. i. Character reference letter from X___ states she has known the applicant for over 15 years and he is in her opinion an upright, religious, caring person. She states the applicant is dependable, loyal, trust worthy and she would stand behind him in any endeavor he chooses to partake in. j. Character reference letter from Ms. X___ states the applicant has consistently displayed genuine acts of kindness, thoughtfulness and concern for all that are around him in the work place. She states without hesitation the applicant will greet all with a simile, lend a helping hand or give a Godly word of encouragement, to date the applicant is a man of outstanding character. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 2 November 1977. b. On 14 November 1978, he accepted non-judicial punishment (NJP) for unlawfully strike private first class (PFC). The applicant’s record is void of the DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ)). c. On 26 April 1979, he accepted NJP for dereliction in the performance of duties, failing to work on detail for staff sergeant (SSG), and four specifications of failing to follow lawful orders. The applicant’s record is void of the DA Form 2627 for this offense. d. On 15 May 1979, he accepted NJP for disrespect toward a commissioned officer and failure to follow lawful order by sergeant (SGT) on four separate occasions. The applicant’s record is void of the DA Form 2627 for this offense. e. On 16 May 1979, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14-33b (1) of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), for misconduct (frequent incidents of a discreditable nature with civil or military authorities). f. On 17 May 1979, he consulted with legal counsel and acknowledged: * he was advised of the basis for the contemplated separation action under provisions of chapter 14, AR 635-200, for misconduct * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may encounter substantial prejudice in civilian life * he was advised that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he elected not to submit a statement in his own behalf * he retained a copy of this request for discharge and of any enclosures submitted * g. On 24 May 1979, the immediate commander recommended discharge under provisions of AR 635-200, chapter 14 and requested rehabilitative transfer requirements be waived. The commander stated: * the applicant's performance and attitude had been poor * the applicant had consistently failed to be at his appointed place of duty * he had attacked another Soldier in the unit * he displayed a constant lack of concern to his military responsibilities h. On 30 May 1979, and 12 June 1979, the applicant's intermediate and senior commanders recommended approval for discharge under provisions of AR 635-200, chapter 14 for misconduct. i. On 19 June 1979, the separation authority waived rehabilitation and approved the applicant’s discharge under provisions Chapter 14, AR 635-200 and ordered the applicant be issued a Under Other Than Honorable Conditions Discharge Certificate, SPD JKA. j. On 27 June 1979, the applicant was discharged from active duty. His DD 214 (Report of Separation from Active Duty) shows he received an under other than honorable conditions characterization of service. It also shows the following: * block 9a: type of separation discharge * block 9d: discharge date 27 June 1979 * block 9c: reason for discharge Chapter 14, AR 635-200, SPD JKA (Discreditable incidents – Civilian or Military) * block 18a: he completed 1 year, 7 months and 15 days * block 26: awarded/authorized Marksmanship Badge (M-16) * block 27: he has 11 days of lost time k. On 9 January 1995, the Army Discharge Review Board review the applicants case and denied his request. 5. By regulation, (AR 635-200), action will be taken to separate a member for misconduct such as frequent incidents of a discreditable nature with civil or military authorities. Action will be taken to separate a member for misconduct when it is clearly established that despite attempt to rehabilitate or develop him as a satisfactory. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter 6. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 1. 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 for consideration for reviewing discharge upgrade requests, the Board found that relief was warranted. The Board considered the applicant's statement, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the amount of post-service character evidence provided by the applicant in support of a clemency determination, showing he has learned and grown from the events leading to his separation. Based on a preponderance of evidence, the Board concluded that granting clemency and upgrading the character of service to Under Honorable Conditions (General) was appropriate. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 CMM: BS: : DJG: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : GRANT FORMAL HEARING : : : 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 amending his DD Form 214 for the period ending 27 June 1979 by amending his characterization of service to “Under Honorable Conditions (General).” 022 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states than an honorable discharge is separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the Soldier’s current enlistment or period of obligated service with due considerations for the Soldier’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) states that a general discharge is separation from the Army under honorable conditions. It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a Soldier whose military record and performance is satisfactory. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 3. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 3. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 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.