ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  10 October 2019 DOCKET NUMBER:  AR20190003590 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20150018899 on 27 April 2017.  Specifically, he requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 4 February 2019

.character reference letter from a coworker, dated 14 September 2018

.character reference letter from a coworker, dated 16 September 2018

.character reference letter from an acquaintance, dated 24 September 2018

.character reference letter from a pastoral staff member of Christian House ofPrayer, dated 30 October 2018

.character reference letter from the Operations Manager of Logistics for theAmerican Red Cross, dated 27 November 2018



FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20150018899 on 27 April 2017.

2.The applicant submitted new evidence with this application that was not consideredby the Board during its initial consideration.  Therefore, it warrants consideration at thistime.

3.The applicant states the event only occurred once and it was not premeditated;therefore, the event does not reflect his character nor his conduct as a Soldier or as acivilian.  He was never informed that he had approximately three years to file afterdiscovering an error or injustice.  He was verbally told by a Judge Advocate Generalattorney in the presence of his noncommissioned officer in charge to accept thedischarge; he was told he could later get it upgraded because his unit allegedly
discharged him under the wrong chapter of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 

4.The applicant enlisted in the Regular Army on 25 July 2002.  He completed trainingand became qualified as an information systems operator analyst.

5.The applicant was counseled on 5 January 2005, following his conviction, pursuantto his plea, of a domestic violence offense on 2 January 2005.   He was told his securityclearance was being revoked, he was being flagged from favorable personnel actions,and he was being barred from reenlistment.  He was advised he could not work withinhis military occupation specialty, was nondeployable, and fell under the restrictions ofthe Lautenberg Amendment.  Based on these facts, the commander stated he would beinitiating separation actions.

6.The applicant was notified that actions to separation him from the Army had beeninitiated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reasonof his commission of a serious offense.  His commander cited domestic violence as abasis for the initiation.  He acknowledge receipt of the notification, he consulted withcounsel, and he made an election not to submit a statement in his own behalf.

7.The separation authority approved the recommendation for discharge under theprovisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct–commission of a serious offense and directed the issuance of a general, underhonorable conditions discharge.

8.The applicant was discharged on 16 May 2005, under the provisions of ArmyRegulation 635-200, paragraph 14-12c, due to misconduct – commission of a seriousoffense.  His DD Form 214 confirms his service was characterized as under honorableconditions (general).

9.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeof his service characterization.  The ADRB considered his petition on 18 October 2006but determined his character of service and reason for separation were proper andequitable.

10.As new evidence not previously considered by the ABCMR, the applicant providesfive letters of recommendation from coworkers, acquaintances, and a staff member ofthe American Red Cross, each attesting to the applicant's good character and post-service conduct.

11.The Board should consider the applicant's provided evidence and statement inaccordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION: 

1.The Board reviewed the regulation concerning the reason for discharge, “Misconduct–Commission of a Serious Offense.”  This reason is given when a Soldier is commits aserious military or “civil offense” if the specific circumstances of the offense warrantseparation and a punitive discharge is under the Manual of Court-martial.  The recordshows that the applicant committed domestic violence assault consummated by battery.This offense is a violation of Article 128 of the Uniform Code of Military Justice triable bycourt-martial which could warrant separation with a punitive discharge.  Accordingly, noerror is found in the applicant’s reason for discharge.



2.The Board noted that the applicant was discharged by reason of "Misconduct –Commission of a Serious Offense” under Army Regulation 635-200 which authorizesissuance of an under other than honorable discharge or a general discharge consideringthe Soldier’s overall service performance.  Accordingly, the separating authority directeda general under honorable conditions discharge rather than the lesser discharge underother than honorable conditions.  The Board found this to be equitable. Based on theapplicant’s serious offense misconduct, his service was not so meritorious as to warrantan honorable discharge.3.The Board noted that the applicant’s request had been previously considered by theArmy Discharge Review Board and the Army Board for Correction of Military Records.Both Boards considered the applicant’s record and evidence, and found that hisdischarge was proper and equitable under the circumstances and denied his request fora change of the character of discharge from general under honorable conditions tohonorable.4.The Board considered the letters attesting to the applicant's good character and post-service conduct but found the evidence insufficient, considering the misconduct, tosupport a clemency determination.  Based on a preponderance of evidence, the Boarddetermined that the character of service the applicant received upon separation was notin error or unjust.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

After review of the application and all evidence, the Board found no error or injustice in the applicant’s general discharge.  The Board agreed that the applicant’s general discharge characterization is appropriate and equitable considering his misconduct and record of service.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150018899 on 27 April 2017. 



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 600-20 (Army Command Policy) states the Lautenberg Amendmentto the Gun Control Act of 1968, effective 30 September 1996, makes it a felony forthose convicted of misdemeanor crimes of domestic violence to ship, transport,possess, or receive firearms or ammunition.  The Amendment also makes it a felony totransfer a firearm or ammunition to an individual known, or reasonably believed, to havesuch a conviction. Soldiers are not exempt from the Lautenberg Amendment.  Soldiers
with qualifying convictions may not be assigned or attached to tables of organization and equipment (TOE) or modified TOE (MTOE) units. Commanders will not appoint such Soldiers to leadership positions that would give them access to firearms and ammunition. Soldiers with qualifying convictions may not enlist or reenlist and may be voluntarily or involuntarily separated under the provisions of Army Regulation 635-200. 

2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.Chapter 14 establishes policy and prescribes procedures for separating membersfor 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 Soldiers discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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//