ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20170016755 APPLICANT REQUESTS: an upgrade of his general discharge 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) * 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, in effect, a. He was separated for patterns of misconduct; however, there is no evidence of such. b. He was court-martialed, but it was illegal. The article 35 hearing failed to provide enough evidence for his case to move to trial, but his commander was on a war path. He was found not guilty of all charges, as expected, during the court martial. However, what was unexpected was the new charge sheet that was created on the spot, which included an assault charge. No one, his lawyers nor himself, were prepared in any way to defend the charges. They were not allowed to try. With no evidence, he was charged and sent to prison. c. Upon exiting the military, a year after leaving confinement, he was horrified to find out that his case was sealed and an appeal was not possible. d. The court-martial was not the basis for his discharge, it was the false claim of disobeying a lawful order. An order he never received nor counseled on. e. He served his country, always volunteered and would do so again without hesitation. f. He believes that he is entitled to his educational benefits and that he deserves the respect that comes with being honorably discharged. 3. A review of the applicant's service record shows: a. He entered active duty on 22 February 2007. b. General Court-Martial Order Number 7, issued by Headquarters, 8th Theater Sustainment Command, Fort Shafter, Hawaii on 18 May 2011, reflects the applicant was found not guilty of one specification of rape (Charge II, Specification 1); however, he was found guilty of assault consummated by a battery. He was sentenced to forfeit $750.00 pay per month for 5 months and to be confined for 5 months. The sentence was adjudged on 5 January 2011. The sentence was approved and ordered to be executed c. The complete facts and circumstances surrounding his separation are not available for review. His DD Form 214 confirms he was discharged on 29 July 2011, under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense), with a characterization of service of general under honorable conditions. He completed 4 years, 1 month, and 10 days of active service and he had lost time from 5 January 2011 to 2 May 2011. The DD Form 214 also shows in: * Item 26 (Separation Code) - JKQ * Item 27 (Reentry Code) - 3 * Item 28 (Narrative Reason for Separation) - Misconduct (Serious Offense) 4. AR 635-200 states, action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. Soldiers separated under Army Regulation (AR) 635-200, paragraph 14-12c, misconduct, are assigned the Separation Code JKQ. The RE Code associated with this Separation Code is RE-3. b. Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, are assigned the Narrative Reason for Separation as "Misconduct - commission of a serious offense." 5. 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 not warranted. Based upon the serious criminal misconduct in the applicant record, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. AR 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. b. Paragraph 3-7b states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 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) AR20170016755 4 1