IN THE CASE OF: BOARD DATE: 25 February 2020 DOCKET NUMBER: AR20180013382 APPLICANT REQUESTS: upgrade of his U.S. Army Reserve (USAR) discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * character statement 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: a. He made a mistake when he was young and having his discharge changed to honorable will greatly help his children. He believes that since 20 years have passed, he has shown to his community and family that he has learned from his past mistakes and has been a benefit to society. When he went to apply for a Department of Veterans Affairs (VA) loan, he learned his discharge was other than honorable and believes a reconsideration of his status would be helping a family that deserves it. b. When he was 19 years old, he made a mistake and had a sexual relationship with someone who was 14 years old. He was enlisted in the USAR at that time and continued to serve in the USAR until 2003. Upon being discharged, he was given an other than honorable discharge. c. Since that mistake happened, he turned his life around. He was married in 2004 and started a successful chain of health clubs in 2005, which he continues to run and manage in 12 locations. He has two children, a 16 year old daughter and an 8 year old son. His wife passed away in 2010 and he has been a single parent to his children since then. He has been an active member of their local Rotary Club for 8 years, is on the staff parish relations committee at his local church, and has been on the board of directors for a local community nonprofit for the past 3 years. Having his discharge upgraded to honorable would be a great help and relief to him and his children. He has also attached a letter of support that his local county sheriff wrote on his behalf. He thanks the Board in advance for considering upgrading his discharge and restoring pride to his children. 3. The applicant enlisted in the USAR on 3 July 1996 at the age of 17. 4. He provided a DD Form 214 which shows he completed active duty training from 22 May 1997 through 19 September 1997, and was honorably released from active duty with transfer back to his USAR unit. 5. The complete facts and circumstances surrounding the applicant’s USAR discharge are not in his available records for review. 6. Headquarters, 89th Regional Readiness Command Orders 04-161-00011, dated 9 June 2004, discharged him from the USAR effective 9 July 2004, under the provisions of Army Regulation 135-178 (Army National Guard and Reserve – Enlisted Administrative Separations), with a general, under honorable conditions characterization of service. The specific chapter and paragraph authorizing his discharge is not listed in the orders. 7. A review of the U.S. Army Human Resources Command (HRC), Soldier Management System (SMS) confirms a transaction was completed to involuntarily discharge the applicant from USAR Troop Program Unit service effective 9 July 2004, due to misconduct – civilian conviction. 8. The applicant provided a character statement, dated 14 April 2017, written by the County Sheriff, wherein he states: a. He has known the applicant for 13 years and during that time did not have any negative issues with him in either a personal or professional capacity. He states the applicant is a registered sex offender on the State Patrols sex offender registry for an offense that occurred when he was 19 years old. At the age of 37, the applicant continues to meet all of his obligations set for the by the State Patrol with regard to continual registration requirements. b. The applicant has been a good neighbor of his for the past 13 years. His wife passed away a few years ago and as a single parent, he dedicates the majority of his time to raising his son who resides with him. During the summer months, he also has custody of his teenage daughter and has been a good father and role model to his children. He has seen the applicant cry more than once about the consequences of the crimes he committed 18 years ago and the affects it could have on his children in the future. He is the co-owner of the Anytime Fitness Center in and is a respected businessman. 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 absence of a separation packet, the entry on the personnel system reflecting civilian conviction as the reason for his involuntary separation. The Board found insufficient evidence of in-service mitigation to overcome the serious misconduct. The Board considered the applicant provided character statement regarding his post- service conduct and behavior, but found it insufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 135-178 (Army National Guard and Reserve – Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve. a. Paragraph 11-2 states a Soldier may be discharged for misconduct when it is determined the Soldier is unqualified for further military service by reason of a civil conviction. b. Paragraph 11-4 states Soldiers convicted in civilian or military court of a sex offense, but whose sentence did not include a punitive discharge, will be processed for separation. Any Soldier convicted of rape, sexual assault, forcible sodomy, or an attempt to commit one of those offenses who is not punitively discharged, must be processed for administrative separation for commission of a serious offense. c. The characterization of service normally will be under other than honorable conditions, but characterization as general, under honorable conditions may be warranted under the guidelines in chapter 2. For Soldiers who completed entry level status, characterization of service as honorable is not authorized, unless the Soldier’s record is otherwise so meritorious that any other characterization would be inappropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013382 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1