IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190009656 APPLICANT 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 Provisions of Title 10, U.S. Code, Section 1552), dated 8 May 2019 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 8 May 2019 * DA Form 4856 (Developmental Counseling Form), dated 16 October 2001 * Memorandum For Record (MFR), dated 31 October 2001 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 1 November 2001 * five witness statements, dated between 11 January 2001 and 2 November 2001 * MFR, dated 3 November 2001 * Self-Authored Testament, dated 16 June 2003 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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: a. He was wrongly accused and abused by a superior noncommissioned officer (NCO) in his unit. As a younger Soldier with less experience, the superior NCO influenced the outcome of his discharge. Sergeant First Class (SFC) X____, an African American member and platoon sergeant, had a negative attitude towards him. The applicant found this NCO’s actions and that of his Captain X____, to be very corrosive and anti-disciplinary. They had a hidden agenda filled with discrimination, bullying, and back stabbing towards anyone that didn’t fit their image of the Caucasian or African American Soldier. b. He was confronted with this uncomfortable reality during his active duty period due to the constant bullying and ethnic discrimination. The applicant found himself making unconventional and irrational decisions to escape the emotional and mental distress created by his situation. He should be allowed the opportunity to clear his name of the wrongful charges against him, simply because of discrimination. 3. The applicant enlisted in the Regular Army on 14 July 1998. 4. The applicant was formally counseled on seven separate occasions between 6 November 2000 and 21 December 2001, for reasons including but not limited to: disrespect towards an NCO, disobeying a lawful order, abusing the open-door policy, and dereliction of duty. 5. The applicant accepted non-judicial punishment on 2 November 2001, under the provisions of Article 15 of the UCMJ, for being disrespectful towards a superior NCO by refusing to answer when spoken to, on or about 16 October 2001. 6. The applicant's immediate commander notified the applicant on 13 February 2002 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12b, for misconduct – pattern of misconduct. 7. An MFR, dated 14 February 2002, shows the applicant refused legal counsel and to submit statements in his own behalf. He was thoroughly advised of his rights and the implications of his decision to withhold his signature. 8. The applicant consulted with counsel on 20 February 2002 and was advised of the rights available to him and the effect of any action taken by waiving these rights. He was afforded the opportunity to submit statements in his own behalf. He refused to sign. 9. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. The separation authority approved the recommended action on 27 February 2002 and directed the issuance of a general discharge. 10. The applicant was discharged on 3 May 2002, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions (general). 11. The applicant provides witness statements, wherein the authors contend that SFC X____ was mean towards subordinate Soldiers, used profanity, and was disrespectful. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. The Board agreed that it was possible that the applicant had become a target for discrimination by a senior noncommissioned officer, a conclusion supported by the statements of a junior noncommissioned officer and other junior enlisted Soldiers provided by the applicant. The Board further agreed that, although the applicant's record supported a discharge for misconduct, there was sufficient evidence of in-service mitigating factors to support a favorable clemency determination. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to fully honorable. 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 reissuing his DD Form 214 for the period ending 3 May 2002 to show his service was characterized as honorable. 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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 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. 3. 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// ABCMR Record of Proceedings (cont) AR20190009656 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009656 5 ABCMR Record of Proceedings (cont) AR20190009656 4