BOARD DATE: 18 August 2020 DOCKET NUMBER: AR20180006814 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to honorable. 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) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. The applicant states he was injured on deployment. After his injury, he left his unit and was assigned to a Warrior Transition Unit (WTU) at Fort Hood, Texas. He came under a whole new chain of command that did not know him and was dealing with issues he was not used to. He was given an Article 15 for missing an appointment that his unit did not take him to. He received another Article 15 for attending his grandmother’s funeral without a pass. When he was arrested at Fort Hood, he was unaware a passenger in his vehicle had brought drugs and a weapon in his car. He was a good soldier and thinks he deserves a second chance. 3. A review of the applicant’s record reveals: a. He enlisted in the Texas Army National Guard for a period of 8 years and 00 weeks in the rank of Private (PVT)/E-1 on 11 December 2006. b. A DD Form 214 dated 14 September 2007 reflects: * his service on active duty from 14 May 2007 through 14 September 2007 * Item# 23 (Type of Separation) Release from Active Duty Training * Item #24 (Character of Service) Uncharacterized * Item# 28 (Narrative Reason for Separation) Completion of Required Active Service c. Orders 200-377, published by Texas Military Forces, Army National Guard, Austin, Texas, dated 18 July 2008, ordered the applicant to active duty in support of Operation Iraqi Freedom for a period not to exceed 400 days. d. A DA Form 638 (Recommendation for Award) was prepared by Commander, F Company, 949th Combat Support Company (CSC) wherein he stated: (1) The applicant was tasked to provide security and over watch during convoy operations and he was proficient at his Tactical Techniques and Procedures as a gunner. (2) He knew the responsibilities of the primary casualty evacuation vehicle. He understood his role as a gunner and helped out the driver and crew with the maintenance and functionality and operations of the internal component of the truck, such as the blue force tracker and radio singers. (3) He was proficient at the types of weapons he had been ordered to use during the convoy security missions to gain a deeper understanding of their functions. (4) His dedication was paramount to the convoy he was assigned in the company to accomplish the mission as a convoy security element. e. The applicant received Reassignment Orders A-05-915158, published by Landstuhl Regional Medical Center, Germany, dated 29 May 2009 wherein he was reassigned to USA Medical Department Activity (MEDDAC), Fort Hood, TX through a Medical Evaluation of Reserve Component Soldiers for continued medical care. He reported to MEDDAC for medical care not to exceed 30 days. f. DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 28 July 2009, shows he received nonjudicial punishment stating: (1) in that he did at Fort Hood, Texas on or about 5 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0845 hours physical therapy appointment. This is in violation of Article 86, UCMJ. (2) in that he did at Fort Hood, Texas on or about 6 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 1500 hours MRI appointment. This is in violation of Article 86, UCMJ. (3) in that he did at Fort Hood, Texas on or about 16 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit; 0630 hours physical training formation. in that he did at Fort Hood, Texas on or about 17 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0900 hours accountability formation. This is in violation of Article 86, UCMJ. (4) in that he did at Fort Hood, Texas on or about 17 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0900 hours accountability. This is in violation of Article 86, UCMJ. (5) in that he did at Fort Hood, Texas on or about 18 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 1300 hours Staff Duty desk located in the vicinity of Bldg 340. This is in violation of Article 86, UCMJ. (6) in that he did at Fort Hood, Texas on or about 26 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0600 hours accountability formation. This is a violation of Article 86, UCMJ. (7) in that he did at Fort Hood, Texas on or about 29 June 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 1330 hours appointment at ADAPC. This is a violation of Article 86, UCMJ. (8) in that he did at Fort Hood, Texas on or about 7 July 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0630 hours accountability formation. This is in violation of Article 86, UCMJ. (9) in that he did at Fort Hood, Texas on or about 7 July 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0900 hours accountability formation. This is in violation of Article 86, UCMJ. (10) in that he did at Fort Hood, Texas on or about 10 July 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0630 hours accountability formation. This is in violation of Article 86, UCMJ. (11) in that he did at Fort Hood, Texas on or about 14 July 2009, without authority, fail to go at the time prescribed to his appointed place of duty to wit: 0630 hours accountability formation. This is in violation of Article 86, UCMJ. (12) In that, he had knowledge of a lawful order issued by LTC S__, to wit: paragraph 4f. Warrior Transition Brigade Policy Memorandum number 30, dated 26 February 2009, an order which it was your duty to obey, did at Fort Hood, TX , on or about 10 June 2009, fail to obey the same by wrongfully having a guest in your barracks room that was not properly signed in. This is in violation of Article 92, UCMJ. (13) In that he knew of his duties at Fort Hood, Texas on or about 7 June 2009, were derelict in the performance of those duties in that he negligently failed to call in for weekend or holiday accountability, as it was his duty to do. This is in violation of Article 92, UCMJ. (14) In that he, who knew of his duties at Fort Hood, TX, on or about 3 July 2009, were derelict in the performance of those duties in that he negligently failed to call in for weekend or holiday accountability, as it was his duty to do. This is in violation of Article 92, UCMJ. (15) In that he, who knew of his duties at Fort Hood, TX on or about 4 July 2009, was derelict in the performance of those duties in that he negligently failed to call in for weekend or holiday accountability, as it was his duty to do. This is in violation of Article 92, UCMJ. (16) In that he, who knew of his duties at Fort Hood, TX on or about 5 July 2009, was derelict in the performance of those duties in that he negligently failed to call in for weekend or holiday accountability, as it was his duty to do. This is in violation of Article 92, UCMJ. (17) In that he, who knew of his duties at Fort Hood, TX on or about 6 July 2009, was derelict in the performance of those duties in that he negligently failed to call in for weekend or holiday accountability, as it was his duty to do. This is in violation of Article 92, UCMJ. g. Further, he did not demand trial by court-martial. He requested a closed hearing and did not present matters in defense, mitigation, and/or extenuation. His punishment consisted of: reduction to the rank/grade of private/E-2; forfeiture of $784.00 pay per month for 2 months, extra duty and restriction for 45 days and restriction to the limits of Fort Hood, TX for 45 days. He elected not to appeal the Record of Proceedings Under Article 15, UCMJ. h. An Army Commendation Medal was awarded to the applicant on the 15 August 2009, for exceptional service while serving as a Gunner in support of Combat Operations during Operation Iraqi Freedom. The period covered for the award was 1 December 2008 through 12 August 2009 and was received from his National Guard Unit. i. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 20 August 2009, shows he received punishment under Article 15, UCMJ for the following misconduct: In that he, did at or near Fort Hood, Texas, between on or about 8 June 2009 and 8 July 2009, wrongfully use Marijuana, a Schedule 1 controlled substance. This was in violation of Article 112a, UCMJ. He did not demand trial by court-martial. He requested a closed hearing and did not present matters in defense, mitigation, and/or extenuation and did not request a person speak on his behalf. His punishment consisted of: reduction from Private First Class (PFC)/ E-3 to the rank/grade of private/E-1 and forfeiture of $699.00 pay per month for 2 months. He elected not to appeal the Record of Proceedings Under Article 15, UCMJ j. Orders 287-0114, published by Headquarters III Corps and Fort Hood, dated 14 October 2009, reassigned him to the Fort Hood Transition Center for transition processing on 23 October 2009 for discharge from the National Guard on 23 October 2009. k. The DA Form 4187 (Personnel Action), states a request was being made to involuntarily retain the applicant on active duty for the purpose of Court Martial. The request for 360 day was to extend the applicant with an effective start date of 21 December 2009, adjudged date. The applicant was to be assigned to USA Personnel Control Facility for the duration of Service Member’s retention. He would be retained on Active Duty in current grade and was included in the Active Army End Strength. l. The DD Form 2707 (Confinement Order), dated 21 December 2009, shows he was confined at the Fort Sill Regional Correctional Facility, Fort Sill, OK, on 21 December 2009 for the following UCMJ offenses/charges: (1) Article 81 x1 (Conspiracy to wrongfully introduce a controlled substance on to Fort Hood, TX) (2) Article 112a x 2 (Wrongful introduction of cocaine on to Fort Hood, TX, an installation used by or under control of the armed forces; wrongful use of marijuana m. Orders 362-004, published by the Headquarters III Corps and Fort Hood, dated 28 December 2009, assigned him to the Personnel Control Facility, Fort Sill, OK, while serving confinement with the regional confinement facility with a report date of 7 January 2010. n. DA Form 4187, dated 13 January 2010, verified duty status changed from present for duty to confined by military authorities effective 21 December 2009. He was confined at Fort Sill. o. General Court Martial Order Number 7, published by the Department of the Army Headquarters, Fort Hood, dated 1 April 2010, indicated the applicant was arraigned at Fort Hood, Texas on the following offense at a General Court-Martial convened by the Commander, Headquarters, III Corps and Fort Hood. It states: (1) Charge 1, Article 81, Specification: Did, at or near Fort Hood, Texas, on or about 19 October 2009, conspire with SPC R_____ P_____, US Army to commit an offense under the Uniform Code of Military Justice, to wit: wrongful introduction of a controlled substance, and in order to effect the object of the conspiracy the said Accused and SPC R____ P____, did wrongfully introduce cocaine, a controlled substance, on a military installation, to wit: Fort Hood, Texas. Plea: Guilty. Finding: Guilty. (2) Charge II, violation of Article 112a, Plea: Guilty. Finding: Guilty * Specification 1: Did, at Fort Hood, Texas, on or about 19 October 2009, wrongfully introduce a certain amount of cocaine, a Schedule II controlled substance onto an installation used by the armed forces or under control of the armed forces, to wit: Fort Hood, Texas. Plea: Guilty. Finding: Guilty * Specification 2: Did, at or near Fort Hood, Texas, between on or about 5 September 2009 and 5 October 2009, wrongfully use marijuana. Plea: Guilty. Finding: Guilty. (3) He pled guilty to all charges and specifications. (4) The sentence was adjudged on 21 December 2009. To forfeit all pay and allowances, to be confined for 6 months, and to be discharged from the Service with a Bad-Conduct Discharge. (5) The sentence was approved and, except for that portion of the sentence pertaining to a Bad-Conduct Discharge was executed. p. Orders A-04-011273, published by U. S. Army Human Resources Command, dated 13 April 2010, ordered to active duty and reassigned him to the U.S. Army Personnel Control Facility (PCF) Fort Sill with a report date of 15 June 2010 for a period of 554 days ending on 20 December 2011. q. The DD Form 2718 (Inmate Release Order), dated 13 May 2010, shows he was released from Fort Sill Regional Correctional Facility, Fort Sill, OK, on 25 May 2010 for expiration of sentence to PCF. r. DA Form 4187, dated 25 May 2010, states his duty status changed from confined by military authorities to present for duty effective 25 May 2010. He completed his sentence to confinement. s. General Court Martial Order Number 248, published by the Department of the Army Headquarters, US Army Fires Center of Excellence and Fort Sill, dated 10 November 2010, stated the sentence to forfeiture of all pay and allowances, confinement for 6 months and a Bad-Conduct Discharge, adjudged on 21 December 2009, as promulgated in General Court Martial Order Number 7 has been affirmed. That portion of the sentence extending to confinement has been served. Article 71(c) having been complied with, the Bad-Conduct Discharge would be executed. t. Orders 045-1305, published by Headquarters, US Army Garrison, Fort Sill, dated 14 February 2011, reassigned him to the Fort Sill Transition Center for transition processing on 18 February 2011 for discharge from the National Guard. u. His DD Form 214, dated 18 February 2011, shows he was discharged under the provisions of Army Regulation 635-200, chapter 3. He completed 1 years and 11 months and 5 days of net active service during this period with 42 days of lost time due to absent without leave and 155 days of lost time due to confinement from 12 December 2009 to 24 May 2010. His service was characterized as bad conduct. Item 18 (Remarks) reflected he had 270 days of excess leave from 25 May 2010 to 18 February 2011 and did not complete his first full term of service. v. Memorandum for Army G1, from the Adjutant General from the Texas Army National Guard, Subject: Respondent, applicant, dated 2 March 2012, stated pursuant to a Court Martial conducted on 21 December 2009 in Fort Hood, the applicant was found guilty of violating UCMJ Article 81 Conspiracy by introducing a certain amount of cocaine onto an installation under the control of the Armed Forces and wrongfully using marijuana. The applicant was found guilty and received a six month confinement sentence and a bad conduct discharge while serving on Title 10 Orders Active Duty. The applicant was separated from the Texas Army National Guard prior to the expiration of his current term of service, under the provisions of AGTX Regulation 60-200, paragraph 4b, for Commission of a Serious Offense. w. Orders 089-1083, published from the Army National Guard, Adjutant General’s Department, dated 29 March 2012, discharged the applicant from the Army National Guard and as a reserve of the Army. The applicant received a Bad Conduct Discharge with an effective date of 2 March 2012. 3. The applicant did not provide further supporting documentation. 4. See REFERENCES below. ? BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board carefully considered the applicant’s assertion that he was court-martialed and separated from the service following injury and assignment to the WTU and based on the actions of a passenger in his car who carried drugs and a weapon onto Ft. Hood. The record is void of and the applicant did not provide evidence, which may have provided independent corroboration of these contentions. The record is void of evidence that the applicant was ever assigned to a WTU or that he was injured in Iraq. The Board found insufficient evidence of mitigating circumstances for the serious misconduct. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X 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. ? REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separation – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. 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 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. 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) AR20180006814 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1