IN THE CASE OF: BOARD DATE: 25 September 2020 DOCKET NUMBER: AR20200000419 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR2018000, on 1 July 2019. Specifically, he 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 10 September 2019 * Letter from counsel, Subject: Motion for Reconsideration and Brief in Support of claim to the ABCMR * Six Form SSA-3369-BK ( Work History Report Form) * Columbus Consolidated Government Safe Driving Award, dated 9 May 2012 * Four Certificate of Achievement, Emergency Management Institute, Federal Emergency Management Agency (FEMA), dated 12 December 2012 through 12 January 2013 * Certificate of Training,(Security & Integrity), Georgia Bureau of Investigation Training Center, dated 14 February 2016 * Certificate of Completion, Communicating Effectively and Professionally with LGBTI Offenders, National Institute of Corrections, dated 4 April 2017 * Three Non-Management Employee Performance Reviews, dated 8 February 2011 through 8 February 2013 * First Aid, CPR and AED Certification Card, American Heart Association, dated 3 September 2015 * Six character reference letters 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 AR2018000 on July. 2. The applicant defers his statement to counsel. 3. Counsel states: a. In January 2018, the applicant submitted a request for correction of his military records. Specifically, he requested a change in his discharge characterization and narrative reason. On July 23, 2019, this Board denied his request. The Board specifically noted that the applicant did not provide any character statements or evidence of post-service achievements for the Board to consider. This is incorrect. When the applicant originally submitted his petition, he included several character letters, awards, achievements, etc. The applicant has no idea why the Board stated otherwise. The applicant now requests reconsideration of the July 2019 Board decision, by way of resubmitting his original petition with enclosures. b. The applicant entered the Army in 1989, for a period of four years. He had a GT Score of 80. Like many young men, he viewed the Army as a chance to better himself and serve his country. He completed basic training at Fort Benning, GA. His first and only duty station was Fort Drum, NY. Like many young men, he had some difficulties adjusting to the Army but overall, he was a solid troop. On 21 February 1991, he received a company grade Article 15 for missing a 0715 formation; his punishment included his reduction in rank to E-2, and forfeiture of $1000.00 pay, and 14 days of extra duty and restriction. A short time later, the applicant received a field grade Article 15 for similar misconduct and was reduced to the rank of E-1. c. The applicant attempted to Soldier his way back, until the incident that eventually led to his discharge. During a health and welfare inspection, the applicant's platoon sergeant claimed to find blank ammo in a coat in his wall locker. The applicant disputes this allegation. As the applicant attests, he had loaned his coat to his platoon sergeant for a funeral detail. During a subsequent health and welfare inspection, when the rounds were discovered in the coat, which the applicant had not worn since, the platoon sergeant either had to blame the applicant or admit that he had left the rounds in the coat. He chose the former. Given the applicant’s prior poor performance, it was clear that no one would take his word for what happened and he was chaptered out. In the Article 15 response, the applicant maintained (as he does now) that the ammo rounds were not his. His story has been consistent since the very beginning. He was administratively separated for a pattern of misconduct but was assured that his discharge would be automatically upgraded. This, of course, was a common tool during that time period to get Soldiers to not fight their discharge. If the discharge were to be "automatically upgraded," there was no need to resist it. d. The applicant denied the most serious allegation from the start, and took responsibility for those acts he committed. But, as expected, the command did not believe the applicant and his enlisted chain of command provided no support. He simply had no way of disproving the allegation against him. He made it clear that he had loaned his trench coat to SFC Exxxx, and did not know that the rounds were in his coat. It should be noted that trench coats have removable rank, as opposed to sew on rank. As such, it was common for one Soldier to loan a trench coat to another. And when asked by a senior noncommissioned officer (NCO) to borrow his trench coat, the applicant gladly agreed. He had no idea the NCO would leave rounds of ammunition in his coat. e. The applicant understands that this Board applies a "presumption of regularity" to his records. He also understands that it is impossible to prove, at this late age, that he did not commit the offense. However, the circumstantial evidence surrounding this incident, and the applicant's exceptional character since his discharge, substantiate his claim that he did not commit this offense. This Board can, and should, take his post- service conduct into consideration in determining whether the applicant was the type of individual who would commit this offense. f. Since the applicant’s discharge, he has been a productive member of society. This Board is allowed to look at his "post-service conduct" for two reasons: to determine whether he is the same young man he was when he was discharged, and to determine whether the discharge has served its purpose. I would offer that he is clearly not the same man he was, and his discharge has clearly served its purpose. As evidenced by the attached character letters and certificates and work records, he has remained gainfully employed since his discharge. He currently works for a charitable organization, helping families put themselves back together. He has dedicated his life to bettering himself, his family and his community g. I am attaching a series of character letters that attest to the type of person the applicant is. As one letter notes, he is a family man, a hard-working man, and a productive member of society. Another letter states he is honest, loyal, of good character and a good provider for his family. His wife speaks of his compassion, empathy and dignity. As noted, the applicant is actively involved in his community, doing volunteer work for Changing Directions Foundation since 2015. I am also attaching letters and evaluations from his employer. h. The military is the only organization in the country that can, when they "fire" someone, blemish their character forever. The applicant has borne the stigma of his general discharge long enough. As noted above, he did not commit the one serious offense with which he was charged. Those offenses he did commit were minor in nature and not worthy of a general discharge. In discussing this case with the applicant, I have asked him several times why he wants to have his discharge upgraded. He will receive no financial benefit from doing so, and is obviously not looking to reenlist. It is purely a matter of integrity. He took responsibility for his mistakes some 30 years ago but has lived with an albatross around his neck since then. Fundamental fairness requires that he be allowed to tell his family and friends that he received an Honorable Discharge. The applicant asks this Board to upgrade his characterization of service on the basis of legal and equitable reasons; he is available to answer any questions this Board has for him. 4. The applicant enlisted in the Regular Army on 4 April 1989. 5. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 1 August 1989, for wrongfully escorting females guests into the barracks * on 1 March 1991, for failing to go at the time prescribed to his appointed place of duty * on 29 May 1991, for absenting himself from the unit without authority and with intent to avoid a field exercise 6. The applicant's commander notified the applicant on 24 June 1991 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12b, for patterns of misconduct. His commander cited, as the specific reason for the proposed separation, the applicant's continued acts of misconduct, including his failure to be at his place of duty at the prescribed time, and failure to obey orders and commands. 7. The applicant consulted with counsel on 11 July 1991 and was advised of the basis for the contemplated action to separate him under Army Regulation 635-200, paragraph 14-12b and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he was issued an under honorable conditions (general) discharge. He acknowledged his understanding and declined to provide a statement on his own behalf. 8. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of patterns of misconduct. 9. The separation authority approved the recommended action on 12 July 1991 and directed that the applicant be issued a DD Form 257A (General Discharge Certificate) and that his service be characterized as under honorable conditions. 10. The applicant was discharged on 31 July 1991. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct. His service was characterized as under honorable conditions (general). 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 7 February 2001, determined he was properly discharged, and denied his request for relief. 12. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 1 July 2019, determined he was properly discharged, and denied his request for relief. 13. The applicant provides four SSA-3369-BK Forms (Work History Report Form) which show his work history to include a supervisory position. 14. The applicant provided three Employee Performance Reviews, dated from 8 February 2001 through 8 February 2013 which show an overall performance rating of successful to outstanding. 15. The applicant provides six character reference letters that attest to him being an active motivated member and role model of his community, volunteering with Toys for Tots, a person with a good work ethic, an honest person who is responsible and trustworthy, a hard worker and a caring and understanding person. He has been married for 16 years and raised three kids. He’s positive, professional and always willing to help others. He has established friendships and relationships ranging from six to 15 years. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered counsel's statement, the applicant's record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors. The Board found the documentation of post-service achievements and letters of reference insufficient in support of a favorable clemency determination. Based on a preponderance of evidence, the Board determined that the decision to characterize the applicant's service as under honorable conditions (general) was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2018000, dated July. 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) AR20200000419 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000419 7 ABCMR Record of Proceedings (cont) AR20200000419 6