ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 20109 DOCKET NUMBER: AR20190005645 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160013233 on 2 October 2018. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two page memorandum requesting reconsideration, dated 11 April 2019 * his former commander’s memorandum, requesting punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), dated 21 July 2000 * three DA Forms 4856 (General Counseling Forms), dated 16 November 2000, 15 December 2000 and 3 January 2001 * State of Evidence Ticket for a Blood Alcohol Content, administered on 16 November 2000 * DA Form 2627 (Record of Proceedings, Under Article 15, UCMJ), accepted 4 December 2000 * his former commander's memorandum for vacating his suspended punishment, dated 19 January 2001 * an affidavit from his ex-wife, given in the State of on 24 July 2001 * his former defense counsel's memorandum, dated 18 September 2001 * DA Form 2823 (Sworn Statement), dated 31 October 2001 * DA Form 2627-1 (Summarized Record of Proceedings, Under Article 15, UCMJ), accepted 14 November 2001 * Summary of Board Proceedings, convened on 19 November 2001, with a handwritten note about areas he highlighted, alleging major contradictions FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160013233 on 2 October 2018. 1 2. As a new argument, the applicant states, in effect: a. The original DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), was completed by SGM, who is not a certified Veteran Service Officer (VSO). b. In the Record of Proceedings, the only evidence considered was listed as his DD Form 4 and DD Form 214. No other documentary evidence was provided. SGM advised him only the two items above were needed by the Board, and an upgrade would be approved based on what he had written. c. He would like to introduce the following new evidence not considered in his previous case: (1) The Summary Of Proceedings of the review board appointed and convened at Fort Drum, New York. In this board, during direct examination, he explained that the weapon and marijuana located in the vehicle belonged to his wife. While he told the officers that the weapon and marijuana were not his, after being told by police that the military would not be informed of the incident and out of a deep love for his wife, he decided to accept responsibility to protect his wife. (2) A memo, dated 18 September 2001, from Captain (CPT) of the U.S. Army Trial Defense Service. This memo states the charges against him would be dropped. CPT P states that if the actions of the Army proceeded, "... it would truly serve as the most unjust manipulation of the administrative system that governs chapter actions ..." He further states that the civil case pending against him should be finalized prior to consideration of any discharge action. (3) A statement from his (then) wife, dated 24 July 2001, acknowledging that the weapon and marijuana was in fact hers and that he had no advance knowledge of either prior to the traffic stop. This statement exonerates any intentional misconduct on his part. d. He wishes to stress to the ABCMR that his discharge was finalized and dated 19 December 2001. He did not appear in court to finalize the civilian case until the following year. As of the date of his discharge, he had no civil conviction. e. He wishes to note that when reviewing the materials included with the Summary of Proceedings, that while there are several counselings during his service, the only judicial punishment consideration was vacated at the request of his commanding officer. He truly was, as a young man, attempting to change and develop into the person who would experience a full career in the Army. f. To provide the ABCMR with full disclosure, in 2002 he appeared in civil criminal court, where he accepted an offer to plea to a misdemeanor marijuana charge in exchange for the weapon charge being dropped. Since he had already been discharged from the service, and in an attempt to put the situation behind him and continue on with his life, he accepted the offer, plead guilty, and was fined about $250 dollars. Recently the State of New York began offering those with misdemeanor charges such as his, an opportunity to request the charges be expunged. He and his wife separated prior to his hearing and have since divorced. g. It is his hope that with the approval of the Board and an upgrade, he will be able to obtain assistance from the Department of Veterans Affairs to reenter the community and become a productive individual. 3. The applicant enlisted in the Regular Army on 23 March 1999. 4. The applicant provides documentary evidence that shows the following: a. He accepted non-judicial punishment (NJP) on 4 December 2000, under the provisions of Article 15 of the UCMJ, for overindulging in intoxicating liquor, incapacitating his proper duty performance, on or about 16 November 2000, at Fort Drum, NY. His sentence included a reduction in rank/grade to private/E-2, suspended if not vacated before 4 March 2001. The suspended reduction was vacated on 19 January 2001, for he further violated the UCMJ by failing to go at the time prescribed to his appointed place of duty, [1800 Extra Duty formation], on or about 6 December 2000 and 3 January 2001. b. A DA Form 2823 (Sworn Statement), from Staff Sergeant, showing he saw the applicant pass through the dining facility line without paying, while receiving separate rations, on 12 September 2001. c. He accepted NJP on 14 November 2001, under the provisions of Article 15 of the UCMJ, for stealing a meal from the dining facility, on or about 12 September 2001, at Fort Drum, NY. d. A memorandum from his trial defense counsel, dated 18 September 2001. e. A record of proceedings that shows a board was convened on 19 November 2001; however, it does not show the final board results. 5. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, Orders Number 351- 1003, issued by Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, NY on 17 December 2001, reassigned the applicant to the U.S. Army Transition Point, Fort Drum, NY, effective 19 December 2001, for separation processing. These orders note his discharge was effective 19 December 2001 and show the authority for separation as Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 6. The applicant was discharged on 19 December 2001, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct." His service was characterized as UOTHC. 7. AR 635-200 (Enlisted Separations) Chapter 14-2B states that Soldiers are subject to separation per this section for the following: A pattern of misconduct consisting of— (1) Discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time–honored customs and traditions of the Army. 8. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 2 October 2018. 9. The Board should consider the applicant's request and provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined the overall merits of this case are sufficient as a basis to partially amend the decision of the ABCMR set forth in Docket Number AR20160013233 on 2 October 2018 to change the applicant’s character of discharge to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented demonstrates the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20160013233 on 2 October 2018 to change the applicant’s character of discharge to general under honorable conditions and issue him a new DD Form 214 to that effect. 8/28/2020 X CHAIRPERSON 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 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, 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 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//