IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190005168 APPLICANT REQUESTS: The applicant requests upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (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 served for over 6 years and completed two honorable periods of service. He acknowledges he did not live up to Army standards on one occasion, but this single incident is reflecting negatively on his entire Army career because it suggests to the world he failed as a Soldier. He contends he has been out of the Army for more than 15 years and has not been in any trouble; he attributes this to what the Army taught him. 3. The applicant's service records show: a. On 19 March 1997, the applicant enlisted into the Regular Army for 3 years. After completing initial training, orders assigned him to Germany; he arrived on 22 July 1997. On 14 November 1997, Permanent Orders (PO) awarded him the Army Achievement Medal (1st Award) for meritorious achievement during tank gunnery training. b. The applicant's service record includes an Enlisted Record Brief (ERB), which shows, on 21 February 1999, and while stationed in Germany, the applicant deployed to Yugoslavia; on 18 May 1999, he redeployed to Germany. The ERB also indicates the award of the North Atlantic Treaty Organization (NATO) Medal, based on his service in Yugoslavia. c. On 29 April 1999, PO awarded the Army Achievement Medal (2nd Award) for meritorious service during the period 21 July 1997 to 20 July 1999. On 15 July 1999, PO awarded him the Army Achievement Medal (3rd Award) for outstanding duty performance during tank gunnery training. On 21 July 1999, he completed his 2-year tour in Germany. Orders reassigned him to Fort Hood, TX, and he arrived on 25 August 1999. d. On 30 December 1999, he immediately reenlisted for a 2-year term. Effective 1 June 2000, his Fort Hood chain of command promoted him to sergeant (SGT)/E-5. PO awarded him the Army Good Conduct Medal (1st Award) for the period 3 March 1997 through 2 March 2000. On 20 February 2001, the applicant immediately reenlisted for 6 years. Orders reassigned him to Korea and he arrived there on 31 July 2001. e. On 1 February 2003, the applicant's commander in Korea preferred court-martial charges against him for: * Article 107 (False Official Statements) – signing, with the intent to deceive, a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters) that falsely stated his military dependent lived at an Illinois address * Article 121 (Larceny of Military Property Valued at more than $500) – stealing over $500 in U.S. currency from the Army between 19 March and 27 September 2002 f. On 14 March 2003, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He elected not to submit a statement in his own behalf. g. On 1 April 2003, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority also ordered the applicant's reduction in rank from SGT to private/E-1. On 16 April 2003, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated in Korea and had completed 2 years, 1 month, and 28 days of his second reenlistment; he had continuous honorable active service from 19970319 through 20010219. His DD Form 214 also reflected the following: (1) Item 12f (Foreign Service) – 1 year and 15 days (2) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal, Korean Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon. (3) Item 18 (Remarks) did not show his deployment to Yugoslavia. h. On 2 October 2003, he petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. (1) The applicant argued his discharge was unreasonable because he subsequently made arrangements to pay back the money he had stolen; in addition, he felt his chain of command should have resolved his misconduct at some lower level than a court-martial. He contended anyone can make a bad decision, and argued the military would not be what it is if no one ever got a second chance. (2) On 7 July 2004, after considering both the applicant's honorable service and the seriousness of the offenses he committed, the ADRB voted to grant partial relief by upgrading the applicant's character of service to general under honorable conditions. i. On 24 August 2004, the Army Review Boards Agency reissued the applicant's DD Form 214, reflecting his upgraded character of service. 4. While the applicant acknowledges his misconduct, he essentially argues one isolated incident should not outweigh his more than 6 years of honorable active duty service. a. The applicant's commander preferred court-martial charges against him for making false official statements and stealing military property valued at more than $500; the Manual for Courts-Martial at the time showed the maximum punishments for these two UCMJ offenses included a punitive discharge. * Soldiers charged with UCMJ violations for which the maximum punishment included a punitive discharge could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court- martial * Although the separation authority initially gave the applicant an under other than honorable conditions character of service, the ADRB upgraded his discharge to general under honorable conditions, based on their consideration of the applicant's otherwise honorable service b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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, his immediate reenlistments, the frequency and nature of his misconduct, his request for discharge and the reason for his separation. The Board considered the previous upgrade of his discharge by the ADRB. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of 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. The Board concurs with the corrections stated in the Administrative Note(s) below. 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 : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, with the exception of the corrections stated in the Administrative Note(s) that follow, 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): 1. AR 635-5 (Separation Documents), in effect at the time, provided the following guidance for the completion of the DD Form 214: * Item 12f (Foreign Service) will show the years, months, and days the Soldier served outside the continental United States during the period addressed by the report * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – lists decorations, service medals, campaign credits, and badges awarded or authorized during all periods of service * Item 18 (Remarks) – deployments performed by Soldiers during their continuous period of active service will be reflected by adding the statement "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD- YYYYMMDD)" 2. The applicant's ERB shows, on 21 February 1999, and while stationed in Germany, the applicant deployed to Yugoslavia; he redeployed to Germany on 18 May 1999. The ERB also indicates the award of the NATO Medal because of that deployment. The ERB additionally lists his overseas service in Germany as being from 22 July 1997 to 21 July 1999 (2 years), and indicates he served in Korea from 31 July 2001 until his discharge on 16 April 2003 (1 year, 8 months, and 17 days). Based on the foregoing, the applicant's total foreign service during his active duty service was: Location Years Months Days Germany 2 0 0 Korea 1 8 17 Total 3 8 17 3. As a result, amend his DD Form 214, ending 16 April 2003, as follows: * Delete the current entry in item 12f, and replace it with "0003/08/17" * Add the NATO Medal to item 13 * Add "SERVICE IN YUGOSLAVIA FROM 19999221 TO 19990518" in item 18 REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States (1998 Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 3. The Manual for Courts-Martial, United States (2002 Edition), Appendix 12 (Maximum Punishment Chart) showed a punitive discharge was an available maximum punishment for the following UCMJ violations: * Article 107 (False Official Statements) * Article 121 (Larceny of Military Property Valued at more than $500) 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) AR20190005168 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1