ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170014391 APPLICANT REQUESTS: His under other than honorable conditions discharge be upgraded to (general) under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum barring the applicant from Fort Bliss military reservation (dated 3 June 2011) * Orders 160-0015 (dated 9 June 2011) * Self-authored statement (dated 17 January 2017) * Certificate of Achievement (COA) * Letter from Department of Veterans Affairs (DVA) Office, Waco, TX to Office of the Judge Advocate General, Washington, DC, dated 20 April 2012 * Letter from United States Army Legal Services Agency Fort Belvoir, VA to DVA, Waco, dated 4 May 2012 * Letter from DVA, Waco to Staff Judge Advocate’s Office Fort Bliss, dated 7 June 2012 * Letter from DVA, Waco, to the applicant, dated 25 June 2012 * Letter from DVA, Waco, to Office of the Clerk of Court Arlington, VA, dated 4 September 2012 * Letter from United States Army Legal Services Agency Fort Belvoir to DVA, Waco, dated 13 September 2012 * Letter from DVA, Waco, the applicant with administrative decision, dated 21 November 2012 * Several letters to the applicant keeping him updated as to which agency the DVA was contacting in attempts to acquire information * Four character statements * DD Form 214 (Certificate of release or discharge from active duty) 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. His discharge was inequitable because it was based on one isolated incident in 32 months of service with no other adverse action. He did not have a pattern of misconduct that warranted the chapter 14-12c, that he received for an alleged (serious offense). He asks that his request be considered favorably in accordance with, Army Regulation (AR) 635-200, Chapter 3, Section II, 3-7b, 3-7c, and 3-7d. This chapter and subparagraphs specifically apply to his inequitable characterization of service. He was coerced into signing his chapter. He did not understand fully what was presented to him. He was not given the right to an administrative board, and further, all witnesses in support of his defense against the trumped up charges against him has changed duty stations. He believes his discharge was racially motivated and he was discriminated against during his tour at his last duty station and even after his discharge. b. The Board should note that military orders 160-0015, dated 9 June 2011, the DD Form 214 is in August 2009, separation 13 June 2011, and memorandum, dated 3 June 2011, signed by the commanding general, Fort Bliss, TX, 1st Armored Division. Conflicting and discriminative, banning him from the military reservation 10 days before he was out processed and discharged. The memorandum was given to him after a month and a half of being discharged and as he worked on post as a civilian fulltime. Additionally, see his (detailed self-authored statement) of events relevant to his request for change of character of service, under other than honorable conditions to general under honorable conditions. c. According to AR 635-200, 14-3b, the characterization of his discharge should not have been made without the approval by Headquarters Department of the Army (AHRC-EPR-F). This was not adhered to in his case. His separation code: JKQ and reentry code: 3, are inconsistent with the discharge character of service. Instead in accordance with AR 601-280 (Army Retention Program), his reentry code is waiverable, thus, this clearly shows that the characterization of misconduct (serious offense) was placed on his DD Form 214 unfairly with blatant prejudice and his discharge should have been general under honorable conditions. As a result of the horrible events he went through, he was homeless and living out of his car for 11 months in the streets of El Paso, TX. He humbly as for justice. Please see attached letters that state no such record pertaining to the applicant, VA (Veteran Affairs) file number 5xxxx. 3. The applicant provides: a. Memorandum barring the applicant from Fort Bliss military reservation (dated 3 June 2011). The reason for this action is that the applicant assaulted another Soldier, made false official statements, were disrespectful to a superior commissioned officer, and disobeyed lawful commands. b. Orders 160-0015, dated 9 June 2011 reassigning the applicant to U.S. Army transition point with a report date of 13 June 2011. c. Detailed self-authored statement explaining event of the evening in question subsequently leading to his discharge. d. Certificate of Achievement for a period of 15 February 2009 to 15 February 2010 for outstanding service while assigned as an automated logistics specialist. e. Letter from Department of Veterans Affairs (DVA) Office, Waco to Office of the Judge Advocate General, Washington, DC, dated 20 April 2012. Requesting a copy of facts and circumstances of discharge under other than honorable conditions and service personnel records of the applicant. f. Letter from United States Army Legal Services Agency Fort Belvoir, to DVA, Waco, dated 4 May 2012. Responding to request for court-martial records pertaining to the applicant. No such record pertaining to the applicant exist. g. Letter from X, Waco, to Staff Judge Advocate’s Office Fort Bliss, dated 7 June 2012. Requesting a copy of all service personnel records, to include Facts and Circumstances of discharge of the applicant. h. Letter from X, Waco, dated 7 June 2012, informing the applicant of the information requested and from which agency. i. Letter from X, Waco, dated 25 June 2012, stating they have enclosed letters sent to the applicant at a previous address that were returned. Asked him to please keep his address current with the VA at all times. He must contact both the VA and his VA Medical Center when changing his address. j. Letter from X, Waco, Office of the Clerk of Court Arlington, dated 4 September 2012. Requesting a copy of all service personnel records, to include facts and circumstances surrounding other than honorable discharge of this former service member. k. Letter from X, Waco, dated 4 September 2012, updating the applicant. l. Letter from United States Army Legal Services Agency Fort Belvoir, to DVA, Waco, dated 13 September 2012. Responding to the request for court-martial information pertaining to the applicant. Records indicate that no such record pertaining to the applicant exist. m. Letter from X, Waco, to the applicant with administrative decision, dated 21 November 2012. The decision states his character of service for the period April 22, 2008, to June 13, 2011, is considered a bar to all benefits administered by the Department of Veterans Affairs. The evidence shows that DVA sent the applicant a letter December 14, 2011, allowing him to submit evidence and tell DVA about the events that led to his other than honorable discharge. DVA got no response from the applicant and the only evidence DVA has from the service department shows the applicant’s discharge to be for misconduct (serious offense). Therefore, DVA determined that the applicant’s discharge for VA purposes was issued under other than honorable conditions. n. Character statement from X, dated 5 April 2015 in support of the applicant’s service and friendship. o. Character statement from X, date 10 April 2015 in support of the applicant’s service and friendship. p. Character statement from X, date 19 July 2016 in support of the applicant’s service as a subordinate. q. Character statement from X, undated in testimony of what she saw that evening of the event. r. DD Form 214 showing discharge under provision (UP) of AR 635-200 paragraph 14-12c. Issuing an under other than honorable conditions character of service. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 22 April 2008. b. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, his service record contains a DD Form 214, which was not authenticated by the applicant's signature. The DD Form 214 indicates: * the applicant was discharged under the provisions of AR 635-200, chapter 14-12c by reason of misconduct (serious offense) * he was given a characterization of service of under other than honorable conditions * he was assigned Separation Code of JKQ (i.e., misconduct, serious offense) with a reentry eligibility (RE) code of "3" * he served 3 years, 1 month, and 22 days * he was awarded the Global War on Terrorism Service Medal, Korean Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon c. The applicant also applied to Army Discharge Review Board (ADRB) and was denied relief. The ADRB determined that the applicant was properly and equitably discharged. 5. By regulation, Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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. 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. One potential outcome discussed was to grant relief based upon the over three years of service completed, as well as the character evidence showing the applicant has grown from the events leading to discharge. However, based upon the documentary evidence submitted by the applicant and found within the military service record, the Board concluded there was insufficient evidence to justify changing the record. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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. a. 3-7a(1) states 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. d. 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Army. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of members of the Army. e. 14-3. Characterization of service, or description of separation, a. An under other than honorable conditions certificate is normally appropriate for a member discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record (chap. 3, sec III). When the sole basis for separation is a separate offense which resulted in a conviction or court martial that did not impose a punitive discharge, the member's service may not be characterized under other than honorable conditions unless approved by HQDA (AHRC-EPR-F). f. 14-12c. Members are subject to separation per this section for commission of a serious offense 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 for court martial. 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) AR20170014391 6 1