IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190010398 APPLICANT REQUESTS: The applicant requests to upgrade his under other than honorable conditions to fully honorable, and a personal appearance before the Board. 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) * Self-written statement * List of awards * List of employment * State of North Carolina Criminal Record Search FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080010224 on 2 October 2008 and AR20160018645 on 29 April 2019. 2. The applicant states: a. In April 1984 while serving in Germany he introduced himself to three Soldiers and told them where he was from. He told the three Soldiers he was from a town in North Carolina (NC) that was close to Fayetteville, NC, and that he was a radio operator. A few days later he saw the three Soldiers at the noncommissioned officer’s club, and one of the Soldiers said to him, hello my country “nigga” laughing and the other two Soldiers were laughing as they passed by. He took it as joke and brushed it off. b. He saw the same three Soldiers two days later and they approached him in the same manner as they did the first time. The applicant went to his commander and he replied that the three Soldiers were just joking him. However, he felt that he was being discriminated against. On another night a few days later, the same three Soldiers approached him and called him a country “nigga”, but this time the Soldier from New York put his hands in the applicant’s hair saying my country “nigga”. He went to his commander again and he said the same thing that, they were playing with him. He told his commander that to him they were not joking and had taken the situation out of control. c. It was not a joking matter to the applicant and he felt that it was racist and discriminating against him, his culture and background. The Soldiers had issues with where he was from and made it clear each time they saw him. He joined the Army to defend his country and its honor. He lives by the words justice and liberty for all. He was insulted every time he saw these Soldiers and could not take it anymore. This was the third and final time being laughed at and being discriminated against. Be called a country “nigga” out in public was a disgrace. So when the Soldier put his hands on him showing off in front of his friends and hearing them laughing at him, he took it very personal and he cut the Soldier. 3. On 18 October 1974, the applicant enlisted in the Regular Army for a period of 3 years. 4. In June 1975, he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana. 5. On 8 August 1977, a DD Form 214 shows he was honorably discharged. He reenlisted in the Regular Army for 3 years on 9 August 1977. 6. On 15 July 1980, in the rank and pay grade of sergeant (SGT)/E-5, the applicant immediately reenlisted for 6 years. 7. On 24 July 1981, he received NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order issued by a Lieutenant Colonel. 8. The complete facts and circumstances of his discharge are not available for review with this case. The applicant’s record does not contain a separation packet; however, his service record contains: (1) Orders 192-151, issued by 38th Personnel and Administration Battalion, Germany, on 10 July 1984 ordered his reassignment to the Army Separation Transfer Point for separation processing effective 22 July 1984 (amended to 27 July 1984). The authority is listed as Army Regulation (AR) 635-200 (Enlisted Personnel Separations). (2) A DD Form 214 that shows he was discharged under the provisions of AR 635- 200, chapter 10, for the good of the service, in lieu of trial by court-martial), in the rank/grade of private/E-1, with an under other than honorable conditions characterization of service. He was assigned separation code KFS and he completed 6 years, 11 months, and 19 days of net active service this period. He was awarded the Army Good Conduct Medal (2nd award). 9. On 2 October 2008, the ABCMR considered his petition for an upgrade of his discharge but found no error or injustice. The Board denied his request. 10. On 29 April 2019, the ABCMR reconsidered another petition from the applicant for an upgrade of his discharge but found no error or injustice. The Board denied his request. 11. The applicant provides his North Carolina Criminal Record Search that shows on: * 18 September 1987, he was charged with driving while impaired * 12 December 1987, he was found guilty of driving while impaired and injury to personal property * 11 November 1988, he was found guilty of littering in public/private places * 10 April 1994, he was found guilty of communicating threats * 1 June 1994, he was charged with speeding * 29 May 1995, he was found guilty of driving while intoxicated * 23 March 2002, he was found guilty of reckless driving to endanger * 1 July 2002, he was found guilty of assault by pointing a gun and carrying a concealed gun * 14 May 2004, he was found guilty of reckless driving to endanger * 27 July 2008, he was found guilty of driving while intoxicated 12. He also provides certificates of training/achievement and a list of places he has worked, which were provided to the Board. 13. The applicant contends that he was a victim of racism and discrimination; nevertheless, other than his self-written statement he provides no evidence to support his claims. He also admitted to cutting another Soldier. Furthermore, the applicant did not mention racism or discrimination in his two previous Board considerations. 14. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 15. By regulation (AR 635-200), a Soldier who has committed an offense or offenses for which the punishment can include a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The voluntary discharge request may be submitted after court-martial charges are preferred against the Soldier. A discharge under other than honorable conditions normally is appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. 16. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 17. In reaching its determination, the Board can consider the applicant's petition and his service record 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, his previous periods of honorable service, the frequency and nature of his misconduct, the absence of a separation packet, his request for discharge and the reason for his separation. The Board considered the applicant’s statements regarding his experiencing racist treatment and discrimination. After their review, the Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided certificates showing his post-service work history and training, but no letters of reference; the Board found the evidence provided insufficient to support 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. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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, 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): Not Applicable REFERENCES: 1. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. An applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 10 provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The voluntary discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. 3. 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. a. 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. b. 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 based on 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) AR20190010398 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010398 6 ABCMR Record of Proceedings (cont) AR20190010398 5