ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180001752 APPLICANT REQUESTS: a review of his military record for a possible upgrade of his DD 214 (Certificate of Release or Discharge from Active Duty) block 24 (character of service) from under other than honorable to honorable and restoration of last enlisted rank achieved of sergeant first class (SFC)/E-7. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter to ARBA * Brief in support of Application 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 that he would like a review of his military record for a possible upgrade of block 24 (character of service) with restoration of his last enlisted rank achieved of SFC/E-7. He believes he was not given a fair separation board hearing and that appointed counsel was ineffective for failing to address his character of service for 15 years of active duty service. He also feels that the appointed counsel failed to inform him of his right to appeal the Board decision. He states that he was not informed of his ability to request an appeal or Board review of his separation until this date. 3. The applicant provides a letter to the Army Review Board Agency (ARBA) informing them of pertinent documents pertaining to his request for an upgrade. He also provided a brief in support of his application which states a chronological history of his service, military training and civilian training throughout his career. It further states that during his separation hearing he was given an ineffective assistance of counsel from the Judge Advocate Group (JAG) and counsel never advised him of his ability to appeal the decision of the board prior to being separated from service. It also states that counsel failed to provide testimony of his military awards and accomplishments. The board failed to take into account the sworn testimony on his behalf from his Commanding Officer, Division Chief and Branch Chief who testified to his work and value to the organization and the Army. Counsel also failed to challenge the makeup of the board, which was heavily weighted with biased Military Police Officers and Senior Administrative Officers. Counsel conducted himself indecorously and disrespectfully to members of the separation board, and made constant irrelevant and argumentative objections, clearly alienating the board. The brief states that he was not informed that his enlisted rank would be reduced to the lowest enlisted grade upon separation. The applicant served honorably and substantially above the requirements of all positions held, and dedicated exemplary fidelity and attention to duty throughout his career, with no behavior or duty performance requiring disciplinary action whatsoever. He successfully served the eight years of court ordered probation for his voluntary entry of a guilty plea, for conspiracy to commit arson and theft by deception for the attempted burning of his personal watercraft. He also states that his DD Form 214 does not show his parachutist badge award or his promotion to sergeant first class (SFC). 4. A review of the applicant’s active duty service record shows the following: a. He enlisted in the Regular Army (RA) on 4 September 1975. He reenlisted in the RA on19 August 1983 and 4 June 1987. b. His DD Form 2-1 (Personnel Qualification Record) shows the awarding of the parachutist badge c. Orders 168-176, dated 31 August 1982, promote the applicant to staff sergeant/E-6 with an effective date of 1 September 1982. d. A fire Marshal Report, dated 5 October 1988, shows that a boat owned by the applicant caught on fire and was determined to be incendiary in origin. The fire occurred in the cabin in the boat and was confined to the cabin of the passenger compartment. A follow up investigation states that there were no charges resulting from the investigation. e. On 6 October 1988, the applicant consented to search by the New Jersey state police to determine the exact cause and origin of the fire. No items were seized during the search. The Marine Police (MPO) interviewed Xx__x Xx__x who states that he received the keys for the boat from a fellow named Xx__x who told him the boat was owned by a rich guy who said that anybody can use it. He further stated that he returned the boat to the same location he picked up from, that gas cans were not present on the boat, and that he did not take any items off of the boat. The MPO noted to Xx__x Xx__x that the boat had been found adrift to which he responded that he returned the boat to its original docking location. A New Jersey (NJ) State Police investigation report notes that actor or actors soaked internal compartments of vessel with flammables and used 1 of 3 possible time delay incendiary devices to ignite the fire. It further states that the boat slip was owned by Mr. St_z which was were the applicant housed his boat. f. An MPO interview, dated 7 October 1988, shows that an individual named Xx__x X. Xx__x, denied being a personal friend of Xx__x Xx__x and the he would not give Xx__x Xx__x piss, and didn’t even know the guy let alone anyone with a boat. g. On 4 September 1989, the applicant admitted to the MPO in an interview that he entered into a conspiracy with the ultimate aim of destroying or causing the illegal disappearance of his boat. He further states that Xx__x X. Xx__x knew someone who could get rid of the boat for him and said he had a potential buyer for the boat. The applicant was told to leave the keys to the boat with $300 dollars and not report it for 4 days. Two days later, the applicant received a call from the MPO that they found his boat and the applicant had the boat towed back to its slip. He stated he was supposed to pay another $300 but did not. The applicant also admitted to trying to defraud the insurance company US Boat due to his desperate financial situation and to setting the fire on the boat using a gas grill and a twenty four hour timer. h. On 4 September 1989, the MPO completed a supplementary investigation report that states that the applicant confessed to the aggravated arson and filing a false police report and was subsequently arrested at his residence on a warrant. i. A NJ State Police arrest report, dated 4 September 1989 shows Xx__x Xx__x, Xx__ Xx. Xx__x and Xx__x Xx__x as co-defendants in a conspiracy to commit theft by deception and false reports. j. An indictment (90-02-0232), with no date or signatures, was presented by the Monmouth County courts charging the applicant with first conspiracy-third degree crime, a second and third count of theft by deception-third degree crime, fourth count of attempted theft by deception-third degree crime, fifth count of receive stolen property-third degree crime, and sixth and seventh count of false report to law enforcement-fourth degree crime. k. On 10 April 1990, his immediate commander notified him of his intent to initiate separation under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c for commission of a serious offense for theft by deception, conspiracy, and aggravated arson. l. On 11 April 1990, he was advised by his consulting counsel of the basis for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights. He understood if he had less than six years total of active and reserve military service at the time of separation and am being considered for separation for misconduct under AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board. The applicant requested: * Consideration of his base by an administrative board * A personal appearance before the board * Request consulting counsel * Understood that he may encounter substantial prejudice m. On 17 April, 1990, his immediate commander recommended separation under the provisions of AR 635-200, chapter 14-12c for misconduct-commission of a serious offense. n. On 19 April 1990, the Staff Judge Advocate (SJA) reviewed the applicant’s case for chapter 14 elimination and states that the applicant’s conduct subjects him to prosecution for charges under State law which are the equivalent of felonies under Federal law and that the action is legally sufficient and may be processed. o. On 25 April 1990, his intermediate commander recommended separation under the provisions of AR 635-200, chapter 14-12c for misconduct-commission of a serious offense with an other than honorable discharge. p. On 29 June 1990, a Summary of Proceedings was completed and states that the separation board found the applicant did commit misconduct of attempted arson, attempted insurance fraud, insurance fraud, and conspiracy. His overall service record is excellent. The followings matters were considered in mitigation and extenuation, statements from his present and prior supervisors stating that they would retain him or hire him regardless of the allegations that have been brought against him. Given all that information, the board recommends that the applicant be discharged from the service, with a characterization of service of other than honorable conditions. On 30 August 1990, the applicant acknowledge receipt of the board proceedings. q. On 27 August 1990, the separation authority approved separation under the provisions of AR 635-200, chapter 14-12c for misconduct-commission of a serious offense with an other than honorable discharge and reduction to the rank of private/E-1. r. He was discharged from active duty on 7 September 1990 in the rank/grade of private/E-1. No orders were found promoting him to SFC/E-7. His DD Form 214 shows that he was discharged under the provisions of AR 635-200, chapter 14-12c for misconduct-commission of a serious offense with a other than honorable discharge. It also shows, that he completed 15 years and 4 days of active duty service. The parachute badge was awarded and listed in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons). 5. By regulation, AR 635-5 (Separation Documents shows block 24 (character of service) authorized entries are honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, to be determined and blocks 4a and 4b of the DD Form 214 reflect a Soldier's rank/grade at the time of separation. The separation authority in accordance with AR 600-200 (Enlisted Personnel Management System) paragraph 6-11, reduced the applicant to private/E-1 in a memorandum dated 27 August 1990. 6. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 7. By regulation, AR 635-200, Chapter 14 states that 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. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 8. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation 9. 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 partial relief was warranted. Based upon the seriousness and criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that he characterization of service received at the time of discharge was appropriate. Additionally, based upon the discharge included an automatic reduction in grade, the Board concluded that restoring the pay grade of the applicant to the grade of E7 had no merit. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 4 September 1975 until 3 June 1987.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 14 -12(c)(1) (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. Absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. 2. 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) AR20180001752 0 5 1