ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170017818 APPLICANT REQUESTS: an upgrade of his under honorable conditions 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) * Lincoln Police Department Public Record Criminal History Listing * Self-Authored Statement * Five letters of support * DD Form 4 (Enlistment/Reenlistment Document 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: a. While deployed to Afghanistan, he received nonjudicial punishment (Article 15) for smoking hashish. He was on guard duty with another soldier who accused him of smoking hashish during a late night shift. He was instructed to complete a blood and urinalysis test, for which he claims were both negative for any drugs. He was also asked by the First Sergeant if any other soldiers were doing drugs and he stated, he did not know of anyone. He felt that because he did not provide any names, the unit made an example of him. b. He admits to having other incidents prior to his expiration of service, but the Article 15 was unjust. After receiving the Article 15, he adds that his career took a downturn. His father was dying of cancer, so he only did the minimum to finish up his time with the Army. He doesn’t believe the Army made a mistake with the type of discharge; however, the reason is questionable and he would like to have the discharge type reconsidered. He claims that he was not offered any help with treatment or Alcohol Substance Abuse Program (ASAP) classes, which he believes is a requirement. c. In addition, he desires to go to college and obtain military contract positions that will enable him to better provide for his family. He explains that he has not been in any trouble since his separation and now realizes how important an honorable discharge is for his future. Finally, he is proud of his service to the country. 3. The applicant provides: a. A letter of support from X___, dated 18 May 2017from his direct supervisor, a district supervisor for the Department of Motor Vehicles (DMV) and retired, U.S. Army Sergeant First Class. He states the applicant’s tenure at the DMV has been excellent and that he is a bright and hardworking individual (see attached). b. A letter of support from X___, a friend, former coworker, and retired U.S. Army Sergeant First Class, dated 1 August 2017. He states the applicant is a man of integrity and he recommends him for an upgrade. (see attached). c. A letter of support from X___, his sister, which states while deployed to Afghanistan he earned medals for protecting the men in his squad. He is a kind and caring person that continues to look out for others (see attached). d. A letter of support from X___, his brother-in-law, which states the Army was a growing experience for the applicant and regardless of his mistakes, he is a more mature and complete man. He adds that the applicant has aspirations to go to college and asks that the Board reconsider his discharge type which will enable him to take advantage of the benefits he earned while serving our country (see attached). e. A letter of support from X___, his wife, dated 22 July 2017, which states he is a caring, loving, helpful and loyal person. When things are tough, he doesn’t back down. In many stressful situations, he is able to stay calm. She believes the Army punished him for a crime that he did not commit and asks the Board to reconsider his discharge so he can attend college and support his family. 4. Based on the available information in the applicant’s service records, his DD Form 214 shows: a. He enlisted in the Regular Army on 10 March 2010. b. He deployed to Afghanistan from 9 July 2011 to 26 February 2012. c. A self-authored statement, dated 17 December 2013, states he accepted nonjudicial punishment (NJP) on two separate occasions for lying to a commissioned officer and fighting with another soldier. According to the applicant, he was found not guilty on the second assault charge. d. He was discharged on 6 March 2013. He completed 2 years, 11 months, and 27 days of active service. It also shows he was awarded and authorized: * Afghanistan Campaign Medal with Campaign Star * Army Commendation Medal * Valorous Unit Award * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * NATO Medal * Combat Infantryman Badge 5. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the board on 19 November 2014. 6. By regulation, action will be taken to separate a solider due to discreditable conduct and conduct prejudicial to good order and discipline including conduct violating accepted standards of personal conduct found in the UCMJ. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14-2b. 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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the amount of honorable service completed prior to any misconduct found in the record, as well as the character evidence presented by the applicant to show he has learned and grown from the events which led to his discharge, the Board concluded that granting clemency by upgrading his characterization of service to Honorable was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X 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 reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable distinction 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 characterization would be clearly in appropriate. 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 record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14-12b of this regulation provides procedures for separating personnel for misconduct due to discreditable conduct and conduct prejudicial to good order and discipline including conduct violating accepted standards of personal conduct found in the UCMJ. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170017818 0 3 1