IN THE CASE OF:  BOARD DATE:  3 September 2020 DOCKET NUMBER:  AR20190013387 




APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to an under honorable conditions (general)discharge.  He further requests a personal appearance before the Board.     APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.General Court-Martial Order Number 8, issued by Headquarters, U.S. ArmyManeuver Center of Excellence, Fort Benning, GA, dated 21 September 2017

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 15 August 2017



FACTS: 

1.The applicant states his discharge was caused by his unfaithful wife out of spite.  Hehad already served proudly and faithfully for 15 years with medals, a Purple Heart andtwo combat tours.

2.After a period of service in the Alabama Air National Guard, U.S. Air Force Reserve,the applicant enlisted in the Regular Army on 25 May 2007 in the rank/grade of privatefirst class (PFC)/E-3.  After the completion of his initial entry training, he was awardedmilitary occupational specialty (MOS) 11B (Infantryman).  He reenlisted on 3 September2008 for a period of 6 years, and extended this enlistment twice.  On 12 January 2015,he reenlisted for an indefinite period.

3.A DD Form 458 (Charge Sheet), dated 13 March 2017, shows court-martial chargeswere preferred against the applicant for the following charges:

a.Charge I, for violating Article 108 of the Uniform Code of Military Justice (UCMJ);specifically, for three specifications: 

(1)Specification 1 in that, at or near Fort Benning, GA between on or about6 November 2012 and on or about 1 September 2016, without proper authority, sell 5.56mm green tip ammunition, M200 blank 5.56mm ammunition, 7.62 ammunition, 
M116A1 Simulator Hand Grenades, M159 Illumination Signals, M125A1 Illumination Signals, M18 Smoke Grenades, and M83 Smoke Grenades, which are explosive and are military property of the United States.   

(2)Specification 2 in that, at or near Fort Benning, GA between on or about6 November 2012 and on or about 1 September 2016, without proper authority, sell Red Dot ACOG Optic Sights, of a value of more than $500, military property of the United States.   

(3)Specification 3 in that, at or near Fort Benning, GA between on or about6 November 2012 and on or about 1 September 2016, without proper authority, sell M4 magazines, M4 rails and M4 butt-stocks, of a value of less than $500, military property of the United States.    

b.Charge II, for violating Article 121 of the UCMJ; specifically, for threespecifications: 

(1)Specification 1 in that, at or near Fort Benning, GA between on or about6 November 2012 and on or about 1 September 2016, steal 5.56mm green tip ammunition, M200 blank 5.56mm ammunition, 7.62 ammunition, M116A1 Simulator Hand Grenades, M159 Illumination Signals, M125A1 Illumination Signals, M18 Smoke Grenades, and M83 Smoke Grenades, which are explosive and are military property of the United States.   

(2)Specification 2 in that, at or near Fort Benning, GA between on or about6 November 2012 and on or about 1 September 2016, steal an Electrical Contact Tool Kit NIIN 000793400, M203 Grenade Launcher Laser Sights, and Red Dot ACOG Optic Sights, of a value of more than $500, military property of the United States.   

(3)Specification 3 in that, at or near Fort Benning, GA between on or about6 November 2012 and on or about 1 September 2016, steal M4 magazines, M4 rails and M4 butt-stocks, Army Field Manuals, a sleeping bag pad, a canteen, and a Night Vision Mount Viewer, military property of a value of less than $500, property of the United States.  

c.He was referred for trial to a general court-martial by Court-Martial ConveningOrder Number 3, dated 11 May 2017. 

4.The applicant's record is void of the discharge recommendation by his immediateand intermediate commanders.  However, a memorandum from the Staff JudgeAdvocate, dated 20 June 2017 noted the applicant's chain of command recommendedhis case be disposed of by a general court-martial.

5.The applicant consulted with legal counsel on 27 June 2017, and subsequent to thatmeeting, he voluntarily requested discharge for the good of the service under theprovisions of Army Regulation 635-200 (Active Duty Enlisted AdministrativeSeparations), chapter 10, in lieu of trial by court-martial for the good of the service.  Indoing so, the applicant acknowledged that the charges preferred against him under theUCMJ authorized the imposition of either a dishonorable discharge or a bad conductdischarge.  He further acknowledged:

.he had not been subjected to coercion with respect to his request for discharge

.he had been advised of the implications that were attached to it

.by submitting the request, he was acknowledging he was guilty of the charge(s)against him or of (a) lesser included offense(s) therein contained which alsoauthorized imposition of a bad conduct or dishonorable discharge

.he could be discharged under other than honorable conditions and he could beineligible for many or all benefits administered by the Veterans Administration(VA)

.he could be deprived of many or all Army benefits and he could be ineligible formany or all benefits as a veteran under both Federal and State laws

.he could expect to encounter substantial prejudice in civilian life by reason of anunder other than honorable conditions discharge

.he elected to submit any statements on his own behalf



6.The applicant provided two-page typed statement, dated 27 June 2017 stating, ineffect, that he remains a selfless servant and committed NCO and believes he is onlyguilty of one of the offenses.  He is concerned with his future based on a court-martialconviction yet understands the ramifications of a Chapter 10 as well.  He has served inthe Air National Guard and during his service in the Army received two battlefieldpromotions during deployments to Iraq and Afghanistan and his many awards.

7.The court-martial convening authority disapproved his request for discharge in lieu oftrail by court-martial on 6 July 2017.

8.The applicant submitted an amended personal statement, dated 14 July 2017stating, in effect, the same rationale as before, but with the additions of his NCOERsand a "Court-Martial Chapter 10 Transmittal Form," dated 30 June 2017, wherein hischain of command recommended the applicant be approved under the provisions ofChapter 10 with an other than honorable discharge.

9.The applicant's record contains General Court-Martial Order Number 8, dated21 September 2017 that indicates the court-martial proceedings were terminated on7 July 2017.  This was the result of the applicant's request for discharge pursuant to theprovisions of Chapter 10 of Army Regulation 635-200 that was approved on 1 August2017.  The charges and specifications were dismissed.
10.The separation authority approved the applicant's request for discharge on1 August 2017.  He directed the applicant’s reduction to the lowest enlisted grade anddirected that his service be characterized as under other than honorable conditions.  Hefurther directed the applicant not be transferred to the Individual Ready Reserve.

11.The applicant was discharged on 15 August 2017, under the provisions of ArmyRegulation 635-200, chapter 10, in lieu of trial by court-martial for the good of theservice.  The DD Form 214 he was issued confirms he was discharged in therank/grade of private/E-1 and his service was characterized as under other thanhonorable conditions.  He competed 10 years, 2 months, and 3 days of net activeservice.  It shows he served in Iraq and Afghanistan and was awarded the Bronze StarMedal, Purple Heart, and the Combat Infantryman Badge.

12.The applicant applied to the Army Discharge Review Board (ADRB) for an upgradeof his discharge.  On 19 June 2019, the ADRB determined the applicant's reason fordischarge and characterization of service were both proper and equitable and deniedhis request for a discharge upgrade.

13.The applicant requested a personal appearance hearing.  However, by regulation,an applicant is not entitled to a hearing before the ABCMR.  Hearings may beauthorized by a panel of the ABCMR or by the Director of the ABCMR.

14.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.


BOARD DISCUSSION: 

1.The Board found that the available evidence is sufficient to fully and fairly considerthis case without a personal appearance by the applicant.

2.The Board carefully considered the applicant's request, supporting documents,evidence in the records, and published Department of Defense guidance forconsideration of discharge upgrade requests. The Board considered the applicant'sstatement, his record of service, the frequency and nature of his misconduct, the reasonfor his separation, and whether to apply clemency. The Board found insufficientevidence of in-service mitigating factors 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 ofservice the applicant received upon separation was not in error or unjust.

3.The Board noted that the applicant's period of continuous honorable active serviceprior to his final reenlistment and his reenlistments were not recorded on his DD Form
214 as required by regulation.  The Board determined the applicant's DD Form 214 should be corrected to include these entries.   


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by adding thefollowing statements to block 18 of his DD Form 214 for the period ending 15 August2017:

.Continuous honorable active service from 20070525 until 20150111.

.Immediate reenlistments this period:  20070525-20080902, 20080903-20150111,and 20150112-20170815.



2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the applicant's character of service.

X 

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 15-185 (Army Board for Correction of Military Records (ABCMR))states ABCMR members will review all applications that are properly before them todetermine the existence of an error or injustice; direct or recommend changes in militaryrecords to correct the error or injustice, if persuaded that material error or injusticeexists and that sufficient evidence exists on the record.  The ABCMR begins itsconsideration of each case with the presumption of administrative regularity.  It is not aninvestigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do nothave a right to a hearing before the ABCMR.  The Director or the ABCMR may grant aformal hearing whenever justice requires.

2.Army Regulation 635-8 (Separation Processing and Documents) providesinstructions for completing the DD Form 214.  The regulation describes required entriesfor block 18 (Remarks) of the DD Form 214, which include the following:

a.For enlisted Soldiers with more than one enlistment period during the timecovered by this DD Form 214, enter “Immediate reenlistments this period” and specify inclusive dates for each period of reenlistment.  

b.For Soldiers who have previously reenlisted without being issued a DD Form 214and are separated with any characterization of service except “honorable,” enter “Continuous honorable active service from [first day of service for which a DD Form 214 was not issued] until [date before commencement of current enlistment]."  Then, enter the specific periods of reenlistment as prescribed above. 

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.An honorable discharge is given when the quality of the Soldier’s service hasgenerally met standards of acceptable conduct and duty performance. 

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 provided that a member who committed an offense or offenses underthe UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and 
the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. 
 
4.  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//