ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170017297 APPLICANT REQUESTS: request for an upgrade of his under other than honorable discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * NGB Form 22 (Report of Separation and Record of Service) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * seven character reference letters * certificate of appreciation (Prince Hall Grand Chapter) * Prince Hall Lodge (Master of the Year) * certificate of achievement (Deacons: Partners in Ministry and Growth) * Stratford Career Institute Diploma (Cooking and Catering) * Fairbanks Newsminers Public Article (Heart of the Kitchen) * certificate of achievements (Festival Fairbanks 18th Annual Potato Festival Fairbanks) * Midnight Sun Chef’s Association Citizen Chef Award * 16th Annual Potato Festival Fairbanks 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 provides a self-authored statement to the Board asking that his under other than honorable conditions discharge be upgraded to general under honorable conditions. He describes the events surrounding the process of his conviction (detailed letter enclosed in packet). 3. The applicant provides: a. Reference letter from XXX, dated 2 April 2011, which states he has worked with the applicant for approximately 16 years. He is a deacon at church and he always assists those who are in need such as the elderly and the handicapped. At church and in the community, he places others before himself. For example, after church services on Sundays, he would start members cars and bring it to the front door for them. It is not often that one receives valet service at church. He is someone with a genuine heart for the Lord, with a caring and willing spirt. b. Reference letter from XXX, dated 6 September 2015, which states the applicant is a leader in the Corinthian Baptist Church. He has had the pleasure of knowing, teaching and working with him a little over 3 years. He has found him to be a just and upright man. He has always been faithful, trustworthy and dependable. c. Reference letter from XXX, dated 20 September 2015, which states her first contact with the applicant was approximately 15 years ago and she has enormous respect for his culinary and leadership skills. He is an eager and enthusiastic chef who is greatly admired in the community. He has prepared food for the Fairbanks Martin Luther King Youth Breakfast for at least five years. d. Reference letter from XXX, dated 24 September 2015, which states he has known the applicant to be a man of integrity, honesty and reliability over the past 25 plus years. He has worked very hard in the food industry, working his way up from dishwasher to a licensed certified chef. e. Reference letter from XX, dated 10 November 2015, which states he met the applicant while working as a corrections officer at Fairbanks Corrections Center in 1987, and their relationship has blossomed to where he considers him to be a very good friend and Christian brother in the Lord. He is active in his church and is involved with positive events in the community. He exhibits natural leadership and a willingness to work with others which results in a much needed camaraderie in the community. f. Reference letter from XXX, dated 7 December 20015, which states for many years it has been his pleasure to work with the applicant. The applicant has demonstrated himself to be talented, reliable and honorable representing the culinary industry. He is a shining example of what a professional chef should be. He was one of the first recipients to receive their highest honor the Chef Frank Davis (Citizen Chef” Award). g. Reference letter from XXX, dated 26 August 2017, which states she is writing this letter regarding her husband, they have been together almost 30 years and what a wonderful journey they have shared. They have raised 5 wonderful and beautiful successful children. They are the proud grandparents of 5 gorgeous grandkids. Over the last 28 years she has witnessed her husband to continue to believe in this system that good will come if you wait. He has tried year after year, time after time to apply for a discharge/change to his military record. He understands as well as she, that his actions as a young man were very wrong and hurtful but they also believe in forgiveness. They have prayed and will continue to pray that things will change. He is a respected part in his community and this church. As his Pastor and his wife, she can assure his sincerely and repentance Please consider his request and upgrade his discharge and reconsider his medical disability. h. On 19 July 1994, he received the Prince Hall Grand Chapter Order of the Easter Star, certificate of appreciation for moral and dedicated service to the Prince Hall family. i. He received the Master of the Year award for 1994-1995. j. On 15 February 2002, he received a certificate of achievement for the Deacons Partners in Ministry and Growth. k. On 22 November 2002, he received is diploma from Stratford Career Institute for Cooking and Catering. l. He was recognized by the local newspaper as the head chef of Westmark Fairbanks hotel and conference center he has worked in the kitchen for 7 years. m. He received a certificate of achievement for Festival Fairbank’s 18th Annual Potato Festival for donating his time, talent and energy. n. In 2013, he received the Chef Frank Davis award. o. On 26 September 2015, he participated in the 16th Annual Potato Festival Fairbanks fundraiser as the Executive Chef. 4. A Review of the applicant's service records shows: a. He enlisted in the Army National Guard on 12 April 1981, prior to his enlistment in the Regular Army. b. He enlisted in the Regular Army on 11 November 1983. c. On 2 December 1985, in Alaska, he was convicted by the civil court of 2 counts of sexual abuse of a minor. d. On 17 January 1986, the court sentenced him to 8 years of confinement for each offense. e. On 4 February 1986, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separation), chapter 14-5a(2), for conviction by civil court. f. On 4 February 1986, the applicant acknowledged receipt of the commander’s notification. He acknowledged: * he was advised for the contemplated separation action under provisions of chapter 14, AR 635-200 * he requested consideration of his case by a board of officers * he waived his personal appearance before a board of officers * he submitted statements on his own behalf * he requested representation by military counsel or civilian counsel at no expense to the government * he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he understood he may be ineligible for many or all benefits as a veteran under both federal and state law and that he may expect to encounter substantial prejudice in civilian life * he understood if he received a discharge certificate/character of service which is less than honorable he could apply to the Army Discharge Review Board (ADRB) or the Army Board of Correction of Military Correction for upgrading * he understood that an act of consideration by either board does not imply that his discharge would be upgraded g. On 26 March 1986, the brigade commander recommended an elimination board. h. On 4 June 1986, the applicant received notification to appear before a board of officers. i. On 10 July 1986, a formal board of officers convened at Fort wainwright, AK. The board of officers: * found that he was convicted by civil court of sexual abuse of a minor (his daughter) in the 1st degree and sentenced to 8 years confinement by the state of Alaska * recommended that he be eliminated from service and given an under other than honorable discharge under the provisions of AR 635-200, Chapter 14, for misconduct and conviction by civil court j. On 18 September 1986, the approval authority approved his reduction to private/E-1 and his discharged under the provisions of AR 635-200, Chapter 14, Section II, Paragraph 14-5a(2), (Conviction by Civil Court), and that he receive an under other than honorable discharge. k. On 25 September 1986, the applicant was discharged and reduced to the rank of private/E-1. His DD Form 214 shows he completed 2 years, 10 months and 15 days of active service. He has lost time from 16 September 1985 thru 25 September 1986. He received the Army Service Ribbon. l. On 15 November 1994, ADRB, determined that the applicant’s characterization of the discharge he received was both proper and equitable. However, the board determined that reason and authority for his discharge should be changed from AR 635-200 Chapter 14, Sec II Conviction by Civil Court to AR 635-200 para 14-12c (1) Misconduct. The applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) reflecting the correct authority. 5. By regulation, separations under the provisions of AR 635-200, Chapter 14-12, provides 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. 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 relief was not warranted. Based upon the seriousness of the misconduct, 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. Chapter 14, paragraph 14-5 states a Soldier may be considered for discharge when initially conviction by civil authorities, or when action is taken that is tantamount to a finding of guilty. If the sentence by civil authorities includes a confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender. a. Paragraph 3-7a provides that 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. b. Paragraph 3-7b provides that 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. 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) AR20170017297 6 1