BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180005557 APPLICANT REQUESTS: * an upgrade of discharge to honorable * a change of his narrative reason for separation to “expiration of term of service” * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Brief in support of application for discharge upgrade * Mr. P letter * Mr. G letter * Mr. P’s letter 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 (ABCMR) 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. Counsel states the applicant was an “African-American” boy who grew up in Atlanta, Georgia and faced racism every day of his life. He tried so hard to overcome the stereotypes placed on him because of his race. a. He completed three years of Junior Reserve Officers Training Corps (JROTC) in high school, which allowed him to enlist in the Army as a private first class/pay grade E- 3 and believed this would result in immediate respect from his peers and supervisors. b. He was wrong; despite him being selected as platoon sergeant during basic training, finishing at the top of his class in advanced individual training, fast tracking head start requirement when he reported to Germany and being selected for duties, such as the company commander’s driver and gate guard due to his discipline, dedication and commitment to being a service member he continued to face animosity from his peers and supervisors. The applicant believe he was treated poorly due to the color of his skin and his high level of performance overshadowing others. He had no one in his corner. (1) In the barracks he resided in, there was a community video cassette recorder (VCR) that was shared by everyone; on a few occasions, the applicant saw other enlisted Soldiers unplug it and take it from the break room for personal use and return it later. He assumed this was an accepted practice, and took the VCR to his German girlfriend’s house and fully intended to return it; however, when he plugged the VCR in, it did not work properly so he assumed it was broken and threw it away with the plan of buying a new VCR for the barracks. (2) The next day the applicant was taken to the military police office and questioned; he apologized to the commander for the misunderstanding of the policy and replaced the VCR with a new one. He was shocked to learn that he was facing court- martial charges and possible jail time; the attorney he met with advised him to take a chapter 10 discharge in-lieu of trial by court-martial and he took the advice and requested the chapter 10 discharge and received an other than honorable discharge. c. Article 121 of the Uniform Code of Military Justice (UCMJ), states that in order to be guilty of larceny, one must intend to "permanently deprive" the owner of the object taken. In this case, the applicant intended to return the VCR; therefore, if he had been properly defended at his court-martial, the evidence would have shown that the applicant only intended to borrow the VCR. d. Since his separation the applicant has become a successful businessman. 3. On 18 August 1982, the applicant enlisted in the Regular Army for a period of 3 years. He was 18 years old at the time of enlistment and completed training requirements. He was awarded military occupational specialty 13B (Cannon Crewman). 4. On 18 November 1982, the applicant was awarded a letter of commendation for being an honor graduate during One Station Unit Training. 5. On 6 August 1983, the applicant received non-judicial under the provisions of Article 15 of the UCMJ for missing movement from the tactical fire training area. He did not appeal. 6. In April 1984, a final Criminal Investigation Division (CID) report disclosed the applicant stole a VCR valued at $450, which was the property of the U.S. Government. a. On 8 April 1984 the applicant made an initial statement in the morning where he stated he did not steal the video [VCR], he did not who took the machine and whoever did needs to turn themselves in because they are getting an innocent man in trouble. He was asked on three occasions if he carried anything out of the barracks and was there anything he would like to add to this statement, where he indicated he carried personal civilian and military clothing. No one else was involved and/or aware of him taking the VCR. b. He made a second statement that afternoon where the applicant states he was bothered that he lied in his first statement. He stated on 6 April 1984 he went to the dayroom to play a video tape in the VCR, no one was in the dayroom at the time, when he went to remove the tape the VCR fell on the floor. He picked it up to find his tape got stuck in the machine and the VCR power would not come back on. He got scared and didn't want to get in trouble. He went and retrieved a laundry bag and put the VCR into it and took it to his girlfriend's house, where he eventually removed his tape from the VCR and then threw the VCR into the dumpster. He hoped nobody would notice it was gone and intended to put it back, but when he went back to the unit, it had already been reported stolen. He made this statement knowing he should have reported what took place, he did not want to go to jail and he did not want to get chaptered. No one else was involved and/or aware of him taking the VCR. c. He made a third statement to clarify his second statement and stated he was planning to take the VCR home and watch a video tape he had. He retrieved the laundry bag because he had items he was bringing with him, went back to the dayroom and put the VCR in the laundry bag. When he got to his girlfriend's house, it was then he realized there was a tape in the VCR that required him to take apart the VCR to get it out. When he removed the tape he broke the latch, he got scared, put the parts in the VCR and threw it in the dumpster. He did not intend on keeping the VCR, he was going to use it that night and return it the next day. No one else was involved and/or aware of him taking the VCR. d. A fourth statement was taken on 27 June 1984 states two other soldiers reported the applicant said he was going to take the VCR; the applicant stated this was untrue, he made a mistake because he took it without anyone's permission and did not understand why someone else would say someone else is involved. No one else was involved, he did not recall saying it to anyone, and he admits he took it without permission but was not planning to keep it. He did not steal it. (1) He was aware of others taking the VCR to use it, he did not know the procedure they went through to use it. He does believe he should have told the unit charge of quarters (CQ) he took it, but he didn't because he saw others take the VCR out of the unit area in the past. He did not want to be bothered and just wanted to take it home to watch a video. (2) The applicant was asked why he bought a replacement VCR for the unit and stated because he felt he had done something wrong by taking the VCR without permission. He did not want to go to jail and realized it was hurting his fellow soldiers if he did not return the VCR. He replaced the VCR not long after he took it. It took him two payments to get it at the Post Exchange. He was telling the truth. He took the VCR in his laundry bag because it was the easiest way carry it; he did not want anyone to see him taking it out of the barracks. He did not tell anyone and no one else was involved. He reiterated he was wrong and understood he must be punished for his actions and was sorry he placed his unit and others in such grief 7. On 5 July 1984, court-martial charges were preferred against the applicant for stealing a VCR, of a value of about $450 the property of the U.S. Government. 8. On 9 July 1984, the applicant voluntarily requested to be discharged for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). a. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, its effects, and of the procedures and rights available to him. He did not indicate if he elected to submit statements in his own behalf. b. He acknowledged that legal counsel for consultation had fully advised him of his rights under the Uniform Code of Military Justice, including the elements of the offense(s) with which he was charged and any relevant lesser included offense(s); the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty: the possible defenses which appeared to be available at the time; the maximum permissible punishment if found guilty; and, the legal effect and significance of a suspended discharge. Although he had furnished legal advice, this decision was his own. c. His chain of command recommended approval of his discharge request with the issuance of an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate. The separation authority approved the applicant’s request for discharge for the good of the service and directed he be furnished an UOTHC Discharge Certificate. 9. On 15 August 1984, the applicant was discharged for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200. His DD Form 214 shows he was given an UOTHC character of service. He completed 1 year, 11 months, and 28 days of net active service. He was awarded or authorized the: * Army Achievement Medal * Overseas Service Ribbon * Army Service Ribbon * Marksman Qualification Badge with M-16 Rifle Bar * Expert Qualification Badge with Grenade Bar 10. In support of his case, the applicant provided through counsel, character reference letters and letters of support, which were provided to the Board. The letters state, in pertinent part, the applicant had been earnest and thoughtful in his approach to business and training. The applicant had outstanding results training individuals in the business of carwash services. The applicant would be an asset at whatever organization of which he is a part of, and he will succeed at anything at which he applies himself. The applicant embraced the training he received and became a top manager. The applicant was quickly promoted to vice president of training for the management company and continued to do a spectacular job. 11. Army Regulation 635-200, chapter 10 stated that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. 12. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 13. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, the investigation to include his statements, the reason for his separation and whether to apply clemency. The Board found his admission and replacement of the item compelling; the Board considered his expressed remorse and letters of reference he provided in support of a clemency determination. Based on a preponderance of evidence, the Board determined that clemency was warranted and an upgrade to his character of service was appropriate. The Board found insufficient evidence to change the narrative reason for his separation. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 amending the applicant’s DD Form 214 for the period of service ending 14 August 1984 to reflect in item 24 (Character of Service) – General, under honorable conditions” vice “Under other than honorable conditions.” 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 change to the narrative reason or further upgrade of the character of service. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 provided that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. 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, 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005557 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005557 9 ABCMR Record of Proceedings (cont) AR20180005557 7