ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS SAMR-RB 28 October 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20180007684 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 20 June 2019, in which the Board members recommended to grant relief the applicant’s request for a discharge upgrade. However, after reviewing the application, supporting documents, findings, conclusions, and Board member recommendations, I find there is sufficient justification to grant further relief. All Department of the Army records of the individual concerned shall be corrected by upgrading the character of service to Honorable Discharge. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is insufficient evidence to grant any relief. Based upon the short term of honorable service completed prior to a lengthy AWOL offense, I find no relief warranted. The application submitted by the individual concerned has been denied by the Army Board for Correction of Military Records. BY ORDER OF THE SECRETARY OF THE ARMY: X___________________ BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20180007684 APPLICANT REQUESTS: * Reconsideration of his earlier request for an upgrade of his bad conduct discharge (BCD) to a general discharge * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter dated 1 March 2018 * 8 Support Letters FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090011828 on 7 January 2010. 2. The applicant states: a. He did not receive proper due process in accordance with the Uniform Code of Military Justice (UCMJ). There is no additional evidence in support of the application to upgrade to general discharge. The problem is not the evidence as much as it is the severity and or the punishment and procedure. Army Regulation (AR) 27-10 (Military Justice), 3-9 would deem this as a ''minor" offense not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial. He was tried by a special court martial and punished by BCD after his first and only offense. From 4 February 1987 to 19 September 1989, he was an exemplary Soldier making the grade of private first class/E-3 within 2 years of his military service. He further references regulatory guidance from AR 27-10: * 3-4. Personal exercise of discretion (para 1d(2), part V, Manual of Courts Martial) * 3–5. Reference to superior * 3–14. Preliminary inquiry; (3). The character and military record of the Soldier, he says was clearly ignored * 3–16. Summarized proceedings- a. Preliminary Inquiry * 3-18 Notification and explanation of rights; e. other rights (1),(2),(3),(4) * 3-19 Rules and limitations; a. Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander b. He feels that the commander did not consult with his noncommissioned officer (NCO)(s) on the appropriate type, duration, and limits of punishment to be imposed. His NCO in charge was not consulted on the evaluation of his daily performance and attitude, in this matter his views on clemency should have been given careful consideration. This clearly shows evidence exists which demonstrates error or injustice to a degree justifying removal of the type of discharge given, which brought a close to his military career, also denied him Veteran status, therefore denial of benefits through the Veterans Affairs. He feels it directly had an influence on his civilian job opportunities with the sub-par DD Form 214 (Certificate of Release or Discharge from Active Duty) which does not define his true character. He asks the Board to look closely into this matter at hand, and embrace the regulations as they were meant to be used as a guide. 3. The applicant provides: a. Support letter from PL, dated 3 June 2017, which states the applicant is a good father, brother and friend. He has always found time to help and assist others. She says that he is a very charming individual with a great sense of humor and is very light hearted. They grew up together in the same home. After graduating from high school with honors and experiencing the college life, he soon decided he wanted to adventure off into the world so he joined the military. That was a sad day for her because she always looked up to him as a big brother not just her cousin. Although, he was always trying to chastise her, but he was only trying to keep her on the right path. Throughout the years, she watched him grow up to be a responsible adult, someone who is determined to work hard and provide a stable life for his family. Whatever he sets out to accomplish, he is guaranteed to be highly committed. Above all his good qualities and accomplishments, the thing she admires the most in him is that he is a good human being. Therefore, she would certainly recommend him for any life changing experiences and goals because he can conquer anything when he puts his mind to it. c. Support letter from OM, dated 6 July 2017, which states she has known the applicant all his life. She did her part in raising him to be the responsible adult he is today. He has always displayed a high degree of integrity, responsibility and ambition. He has always been the kind of person that keeps to himself, but still showed compassion and friendliness to other people. He is always going above and beyond for his friends, which is a quality you do not find in people often enough. He is a very hard worker and takes pride in everything he does as a model citizen. She is very proud of him and the choices he has made in his life. Everyone has had obstacles in their lives and she is proud to say he has made it through some of the toughest times. Needless to say, he is that special kind of guy that is hard to find. d. Support letter from PC, dated 11 July 2017, which states the applicant has been a loyal friend and family man. He has helped him out with family problems and been there for him whenever he has called upon the applicant. He tries to support his children in any way he can. He has worked jobs that have kept him on the road for months at a time. Whenever he has time to get back home, his family comes first. He calls PC and talks about how hard it is on him to work like he does, but through it all, he keeps on going. When it comes to keeping an open mind and level head, he is a person in which you can count on. He has grown into a responsible young man in which anyone would love to meet. e. Support letter from Minister FH, dated 31 July 2017, which states he has known the applicant for about 30 years and they both grew up together in the same community. He has known him to be a good brother and friend to many. Over the years, he has seen him grow to become a mature and productive individual. f. Support letter from CS, dated 23 August 2017, which states the applicant manifests the qualities and resources that any person would find valuable in an individual. He is an extraordinary individual that is held to a higher standard amongst his family and peers. He has had many opportunities to observe the qualities that the applicant possesses throughout the interactions with other peers. He has been blessed with the advantage to observe him in different aspects of his life for 12 years. His valuable experience of 15 years working in the public eye and being involved in different organizations allows him to see the applicant display the means to be successful, the drive to be the best, to set goals, and the commitment to achieve them. He is sure that the same qualities that he sees in him, can be beneficial to anyone. It is without any hesitation that he recommends the applicant to any upgrade the Board sees fit. g. Support letter from WD, undated which states he has known the applicant for approximately 7-8 years and he is a hard workers and appears to be very loyal to his job and family. He has had a few tragic losses in his life but he seems to not let that stop him. He knows the applicant wants to better himself every day. h. Support letter from TT, undated which states he has known the applicant for approximately 30 years in the rewarding capacities of mentor and friend. It was obvious from their first interactions that the applicant carried a special veneration for people that very few ever exhibit. He displayed a humble demeanor that veiled a fiery spirit and thirst to be the very best human being possible. This appreciation and eagerness has helped in forming the brilliant man that he sees today. As a professional law enforcement officer, he labors with people of all ability levels on a daily basis. He can honestly say that the applicant exemplifies what they look for in a productive citizen. He loves life, is wise beyond his years, and possesses a very keen understanding and appreciation of the servitude role needed to truly move organizations. He regularly gives time to the local religious community, assisting the youth in both word and deed. Although his intelligence and leadership qualities make him extraordinary, there is one singular factor that catapults him above others. He simply refuses to fail. He continuously displays a passion and fiery spirit that compels him to be the best. There is no battle that he believes he cannot win. The excelling point for him is that he truly possesses the rare ability of excelling in virtually every endeavor that he undertakes without impairing others in the process. No matter the odds, hardships, or trials, he will find a way to flourish. It is simply a part of who he is. He is a natural born winner. The applicant is an asset to whatever/whomever he chooses to attach himself to. This letter of recommendation testifies of this fact. i. Letter from Paralyzed Veterans of America, dated 19 April 2018 which states it is their belief that the applicant committed a minor offense that did not warrant a BCD. Therefore, they ask that the Board review the case and provide him with due process and ultimately overturn the 1990 decision in favor of a punishment that fits the offense as laid out in the UCMJ. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 4 February 1987. He was assigned to 3rd Battalion, 29th Field Artillery, Fort Carson, CO. b. On 19 September 1989, he was convicted by a special court martial of one specification of being disrespectful in language and deportment toward a non- commissioned officer. The court sentenced him to a BCD and reduction to the grade of private/E-1. c. On 13 October 1989, the convening authority approved the sentence and except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. d. On 25 October 1989, the applicant was directed to be placed on excess leave pending appellate review of his court-martial conviction and sentence. On 2 November 1989, he was placed on involuntary excess leave. e. On 5 January 1990, the U.S. Army Court of Military Review considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. The appellate authority affirmed the =finding of guilty and the sentence. e. On 19 June 1990 Headquarters, U.S. Army Armor Center and Fort Knox, KY published Special Court-Martial Order Number 93 indicating that the applicant's sentence to a BCD and reduction to private/E-1 as promulgated in Special Court-Martial Order Number 37, Headquarters, Fort Carson and 4th Infantry Division, Fort Carson, CO, was finally affirmed. The order further indicated that Article 71(c) having been complied with, the BCD would be executed. f. Accordingly, on 6 August 1990 the applicant was discharged from the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she was discharge din accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) with a BCD in the rank of private/E-1 pursuant to the sentence of a special court-martial. He completed 3 years, 6 months, and 3 days of active service. He was awarded the Army Service Ribbon, Sharpshooter Qualification Badge (M16), Expert Qualification Badge (Hand Grenade). 5. On 13 January 2010, the applicant was notified that the Army Board for Correction of Military Records on 7 January 2010 the Board considered his application under procedures established by the Secretary of the Army, and the application was denied. 6. By regulation, AR 15-185 (ABCMR) applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a BCD 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. 8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 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: 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. After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and letters of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. One Board member granted an appearance before rendering a vote on the upgrade. Based upon the misconduct, the majority of the Board agreed the punishment was severe, and agreed to upgrade the characterization of service to general, under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : :X : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 reissuing him a DD Form 214 for the period ending 6 August 1990 showing his characterization of service as under honorable conditions (General). X___________________ 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that 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. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007684 2 1