IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20180006556 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 27 February 2018 * Order issued in Case Number 2015-SR-384, from the Superior, State Juvenile, Magistrate Courts in Pembroke, Georgia, dated 9 May 2016 FACTS: 1. The applicant states that after his arrest, his commander told him he was going to wait to make a decision on whether to discharge him or to retain him in the Army until a determination was made in civilian court. His case was put on a 12 month dead docket, meaning it was put on hold for 12 months to make sure no more issues surfaced. His commander made him complete drug and alcohol classes, as well as marriage counseling. After completing the classes and counseling that was asked of him, and being told that a decision whether to discharge him would not be made until the civilian court made its decision, he was still discharged before knowing the final outcome. The charges were dropped so he should have never been discharged. 2. The applicant's records show he enlisted in the Regular Army on 11 March 2014. He completed training as a helicopter repairman. 3. The Bryan County (Georgia) Sheriff's Office Family Violence Incident Report shows the applicant was arrested on 23 January 2015 for simple battery on his wife. 4. The applicant was counseled on 2 February 2015, for accusations of domestic violence. His DA Form 4856 (General Counseling Form) shows that on 7 December 2014, his wife called the police department concerning a domestic dispute he had earlier that evening. He had left his house and was stopped by police and was questioned. The accusation of domestic violence was not substantiated at that time and he was not arrested. He was told that although he was not arrested, the conduct he displayed was unbecoming of a Soldier. During a discussion the following day, he informed individuals in his chain command that he had consumed at least one alcohol beverage that day. Due to the fact that he was under the age of 21, he was command referred to the Army Substance Abuse Program (ASAP) in accordance with Army Regulation 600-85 (ASAP), paragraph 3-2c. 5. The applicant was counseled again on 2 February 2015 for unprofessional conduct. His section sergeant stated that on 16 January 2015, the applicant's step-son's biological father contacted the Provost Marshall Office at Hunter Army Airfield concerning the way the applicant was speaking to his wife. The chain of command was notified thereafter and the applicant was reminded that it was the second time that he had a meeting with the command team in under 45 days concerning his conduct while off duty. The applicant was told he must remember that he was a Soldier 24/7 and his actions reflected directly upon that. 6. Again, on 2 February 2015, the applicant was counseled for being arrested for simple battery; family violence. The applicant was arrested on 23 January 2015 by the Bryan County Police Department for simple battery, family violence. During the counseling session, the applicant was told this was the third situation that had been brought to the command team within 45 days and that he had been counseled by a commissioned officer placing a Military Protection Order (MPO) for 30 days after the events transpired. The applicant was told that he must remain farther than 50 feet from all individuals and locations covered by the MPO and to cease all telecommunications (to include email, letters, and social media) for the entirety of the order. He was told he would be allowed to have telecommunication with his wife after the first 14 days and he would be allowed visitation with his children after the first 14 days as well. The MPO along with the alterations was loaded into the database systems of the Bryan County Police Department and the Hunter Army Airfield Provost Marshall. 7. The applicant was referred for a mental health consultation on or about 17 February 2015. His DA Form 3822 (Report of Mental Status Evaluation) shows he was cleared for administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 14, and any administrative action deemed appropriate by his command. 8. In the State Court of Bryan County, State of Georgia, the case against the applicant was placed on a "Dead Docket" on 9 March 2015. 9. The applicant's commander notified the applicant that he was initiating actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. His commander cited an act of simple battery, family violence by placing his hands around his wife's neck and pushing her, as the basis for the proposed action. The applicant acknowledged receipt of the notification on 12 May 2015. 10. The applicant was advised of the basis for the contemplated separation actions for misconduct, the rights available to him, and the effect of any action taken by him in waiving his rights. He requested to consult with counsel and he made an election not to submit a statement in his own behalf. 11. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c on 13 May 2015. 12. The separation authority approved the recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense, and directed the issuance of an under honorable conditions (general) discharge. 13. The applicant was discharged on 16 June 2015, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions. 14. The Army Discharge Review Board (ADRB) Case Report and Directive shows that on 19 April 2017, the ADRB deny the applicant's request for an upgrade of his discharge. 15. The applicant provides a letter from the Superior, State, Juvenile, Magistrate Courts, Pembroke, Georgia, dated 9 May 2016. The letter states that the applicant's case had been on the dead docket for a period of 12 months or more. It states that it appears to the court that the applicant had not committed any further crimes within that time period; therefore, the case was being Nolle Prosequi, and all cash bonds of any, pertaining to the case alone, should be returned to the individual that put up the bond. 16. Black Law Offices describes dead docketing as follows: a. The legal dictionary definition of “dead docketing” is a procedural device by which the prosecution is postponed indefinitely but may be reinstated at any time at the pleasure of the court. When a case is closed by conviction, plea or dismissal, the case comes off of the active docket and goes to the closed docket. Sometimes, a case is not closed, but there is a need to have it off of the active docket. Out of that need, there arose the dead docket. Once dead docketed, the case will not appear on the active trial calendar unless the judge orders it placed back on the active trial calendar. The dead docket is a list of inactive criminal cases which have not actually been terminated. However, many cases placed on the dead docket die there without any further action. b. The courts have clearly stated that dead docketing is not a dismissal or a termination of the prosecution in the defendant's favor. The case is still pending. It can be called for trial upon the judge ordering it back onto the active trial calendar. Since it is still pending, the defendant can still make a demand for trial. A case might be dead docketed because of weak, missing or questionable evidence. A case might be dead docketed because the victim does not wish for the case to be prosecuted and the prosecution is willing to give the defendant a chance to show that there will not be future offenses. c. Nolle prosequi means that the applicant is not guilty. Nolle prosequi means that the State choose to not prosecute the case. For a not guilty determination, a judge or jury would have to find the individual not guilty. This could only happen after a trial. Since there is no trial when a nolle prosequi is requested by the State, there is no trial and thus no finding of guilty or finding of innocence, nor are the charges dismissed. 17. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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 a separation with honor and entitles the recipient to benefits provided by law. 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 2. 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 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 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 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) AR20180006556 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180006556 6 ABCMR Record of Proceedings (cont) AR20180006556 5