ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170018758 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 he performed very well in Germany for 5 years. His first sergeant forewarned him of the possibility of race discrimination against blacks in the region of Fort Lewis, WA. The applicant states he found some truth in the first sergeant's prediction once he arrived to Fort Lewis. 3. A review of his service record shows: a. He enlisted in the Regular Army on 2 January 1979. b. He held the military occupational specialty 13B (Cannon Crewman) and he attained the rank/grade of sergeant (SGT)/E-5. His initial assignment was with Battery A, 2nd Battalion, 39th Field Artillery, 3rd Infantry Division, Germany on 14 May 1979, then on to Fort Lewis, WA on 19 August 1982. c. On 7 January 1983, he accepted nonjudicial punishment under the provisions of Article 15 for failing to register all privately-owned weapons with the military police registration section and intent to deceive a special agent (Special Agent XXX, assigned a. to Fort Lewis (agency not specified in the documentation)). His punishment consisted, in part, of reduction to the grade of Specialist (SPC)/E-4. d. On 7 May 1983, a special agent (Special Agent XX), assigned to the Fort Lewis Criminal Investigation Division (CID), Fort Lewis completed an investigation regarding the applicant who was reported as a shooting victim by Madigan Army Medical Center officials, in Tacoma, WA. e. Based on the facts provided in sworn statements from three of the applicant's barracks mates and the evidence found at the location of the shooting, the special agent concluded the applicant encountered the gunshot wound from his own weapon while in his barracks room. Documentation detailing the recollection of events are as follows: (1) Special Agent XX's investigation report dated 7 May 1983, filed on CID Form 94 (Agent's Investigation Report), provides a summary of verbal and written statements (sworn statements) he obtained from the applicant's unit leadership and barracks mates. (2) The DA Form 2823 (Sworn Statement) from XX dated 7 May 1983 stated that he heard a loud "bang" and saw his roommate fall to the floor. XX describes how the applicant asked him not to call for an ambulance. He told them to get other barracks mates (XX and XX) to assist. XX also states that he was told by the applicant to not report the incident to the unit first sergeant. (3) The sworn statement from XX, stated that he entered the applicant's barracks room, noticed him lying on his bed with his leg bleeding, and asked the applicant if he wanted to go to the hospital. After XX received a yes answer from the applicant, he noticed a small caliber handgun on the bed next to the applicant and realized that it was not supposed to be in the barracks. He states he was asked by the applicant to get rid of the gun for him and remembered the applicant asking everyone assisting him to fabricate their story regarding the incident. He (applicant) was afraid of what the first sergeant would do upon learning he had a handgun in the barracks. HB provides in his statement his role in getting rid of the weapon. (4) The sworn statement from XX, states that he and XX were asked to come to the applicant's room because the applicant had shot himself. XX stated, upon entering the room, he began helping the applicant bandage his leg and assisted him into a taxi to get to the hospital. XX also stated he and XX caught a shuttle bus from the hospital soon after the applicant was admitted for treatment. XX stated that he did not see the handgun and was not told by the applicant how he had shot himself. He was not asked to hide the handgun. f. On 18 May 1983, the applicant was advised of his rights before providing any information regarding his carrying a concealed weapon, solicitation of another to comment a false statement, and violation or failure to obey a lawful general order or a. regulation. Immediately following the reading of his rights, the applicant provided a sworn statement detailing the following: * when he obtained the handgun and how long he owned it * where he purchased it * where he stored the handgun since he purchased it * the type of handgun used in the incident * why he had the handgun in the barracks * why weapon was not registered on post with the Military Police g. A DA Form 3975 (Military Police Report) dated on 26 May 1983 was provided through the chain of command to the applicant's immediate commander revealing that the applicant was apprehended for carrying a concealed weapon, solicitation, and failure to obey a lawful order or regulation. The report also contains the applicant's previous offenses while on active duty. They are: * assault, on 24 March 1979, Fort Sill, OK * wrongful possession of marijuana on 18 August 1980, Germany * assault/indecent assault, 9 August 1980, Germany * false Swearing, carrying a concealed weapon and violation of a lawful or general order, 9 November 1982, Fort Lewis, WA h. On 13 June 1983, the applicant's immediate commander notified him of his proposal to initiate separation proceedings against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, for patterns of misconduct because of his discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline. i. On 14 June 1983, the applicant signed the acknowledgement of notification, was advised by legal consulting counsel, and requested a personal appearance before a board of officers. j. On 15 June 1983, the applicant was recommended for separation by his company commander. He was recommended for separation by his battalion commander on 23 June 1983. k. On 28 June 1983, defense counsel and a board of officers were appointed on 28 June 1983 to conduct a board on the applicant's behalf. l. On 29 June 1983, the applicant was notified to appear before a board of officers to present his case as to why he should remain on active duty. m. The Summary of Proceedings from the board, conducted 3 August 1983, recommended the applicant should be discharged, under the provisions of AR 635-200, a. Chapter 14 for patterns of misconduct, with a general under honorable characterization of service. n. On 16 August 1983 the separation authority approved the applicant's discharge in accordance with AR 635-200, paragraph 14-12b for patterns of misconduct, with a general under honorable conditions discharge characterization of service. o. On 30 August 1983, the applicant was discharged from the Regular Army. He completed 4 years, 7 months, and 29 days of active service with no lost time. His DD Form 214 also shows he was awarded or authorized: * Army Commendation Medal * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar 4. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 14, for discreditable involvement with civil or military authorities and conduct to prejudicial to good order and discipline. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 5. The Board should consider the applicant's submissions 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 a pattern of 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 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. 5/13/2019 X CHAIRPERSON Signed by: 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, sets forth the basic authority for the separation of enlisted personnel a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met 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. c. Paragraph 14-12b, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Members are subject to separation for a pattern of misconduct consisting of: * discreditable involvement with civil or military authorities * conduct prejudicial to good order and discipline 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. a. b. Changes to the narrative reason for the 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.