ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20190007553 APPLICANT REQUESTS: upgrade of his under than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 7 letters of support 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 was young and immature at the time of his discharge; he did not know how to respond to people in senior positions. Because he was having issues in his unit, they gave him the choice of either staying in the military or going home; he chose to go home, without realizing the long-term effects. a. He asserts his chain of command abused its authority by giving him an under other than honorable conditions character of service; he requests the Board grant him clemency because it is unjust for him to continue to suffer for the bad decisions he made as an immature and uninformed young man. The applicant further argues, he has become an increasingly better person since his discharge, and has gained a lot of respect for authority figures. b. The applicant offers details regarding the events that led to his court-martial charges: (1) He had been dropped off at the Post Exchange, and, as he got out of the car, he noticed there was a captain in front of him. The captain told the applicant he had not rendered a proper salute; the applicant immediately saluted. The captain responded with a "lackluster salute" and said, "You don't salute your superiors." The applicant apologized and stated he had just gotten out of the car and had not seen the officer. When the captain continued to press the matter, the applicant told him to get out of his face. The captain asked for the applicant's unit, and the applicant refused to give it; when the applicant began to walk back to his barracks, the captain followed. The captain eventually saw another Soldier (who happened to be the applicant's friend) and the friend told the captain the unit to which the applicant was assigned. (2) Once the applicant's commander learned of the incident, he reminded the applicant he was already on "thin ice" because, some weeks earlier, he had had words with the first sergeant. The commander then asked the applicant if he wanted to stay in the military or get out. Because of his immaturity, he chose to leave, not realizing the consequences of that decision. 3. The applicant provides 7 letters of support from family members, leaders in his church, and retired military members. They all attest to the applicant's strength of character, his ability to lead, and his tireless work ethic. They affirm the applicant is involved in his community and exerts a positive influence on others, particularly the youth. 4. The applicant's service records show: a. He enlisted into the Regular Army for a 4-year term on 31 October 1994; he was 19 years old. Following initial training, orders assigned him to Fort Huachuca, AZ; he arrived on16 March 1995. On 1 August 1996, his chain of command promoted him to private first class (PFC)/E-3. b. On 27 November 1996, his Fort Huachuca commander preferred court-martial charges against him for the following violations of the Uniform Code of Military Justice (UCMJ): * Article 89 (Disrespect Toward a Superior Commissioned Officer) * Article 90 (Willfully Disobeying a Superior Commissioned Officer) * Article 91 (Insubordinate Conduct Toward a Noncommissioned Officer) * Article 86 (Failing to Go to his Appointed Place of Duty at the Time Prescribed) c. On 27 November 1996, after consulting with counsel, the applicant voluntarily, and in writing, 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 affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf. d. On 10 December 1996, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; he also ordered the applicant's rank reduction from PFC to private/E-1. On 13 December 1996, the applicant was discharged accordingly; his DD Form 214 showed he completed 1 year, 1 month, and 13 days of his 4-year enlistment. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and a marksmanship qualification badge. 5. The applicant, in effect, acknowledges the misconduct that led to his adverse discharge and maintains he was young, immature, and did not know how to respond to authority figures. He offers evidence that reflects he has grown since his separation, and has been making positive contributions to his community. a. During his active duty service, the applicant violated the UCMJ; per the Manual for Courts-Martial in effect at the time, the maximum punishment for his offenses (specifically Articles 89, 89, and 91) included a punitive discharge. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in- lieu of trial by court-martial. 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 applicants statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found the applicant provided letters of reference attesting to his post-service achievements and conduct in support of clemency. Based on a preponderance of evidence, the Board determined that the character of service the applicant received was too harsh and that their clemency determination warranted a correction to the applicant’s record. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period of service ending 13 December 1996 to show in item 24 (Character of Service) – “General Under Honorable Conditions”. 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): Not Applicable 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7b General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred. The request had to include the Soldier's admission of guilt. 3. The Manual for Courts-Martial, United States, 1984, Appendix 12 (Maximum Punishment Chart) showed the maximum punishment included a punitive discharge for the following UCMJ violations: * Article 89 (Disrespect Toward a Superior Commissioned Officer) * Article 90 (Willfully Disobeying a Superior Commissioned Officer) * Article 91 (Insubordinate Conduct Toward a Noncommissioned Officer) 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. ABCMR Record of Proceedings (cont) AR20190007553 6 1