IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210008982 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect, the reason his discharge should be upgraded is because he was convicted without any proof. He participated in a summary court- marital which was dismissed due to his right to face his accuser. His chain of command then tried to proceed to a general court-martial which was also dismissed for reasons unknown to him but at the end they had a board of separation in which the prosecutor could not produce any witnesses or statements until his attorney gave the prosecutor a copy. He does believe he was wrongfully convicted, especially without any evidence to say he did commit this serious offense. He personally believes it was racially motivated. 3. On 8 April 2009, the applicant enlisted in the Regular Army for a period of 5 years. He completed training requirements and was awarded his military occupational specialty 91G (Fire Control Repairer). 4. His record contained: a. An Enlisted Record Brief that shows he was assigned to Fort Bliss, TX, on or about 11 January 2010. It also shows, the applicant attained the rank of specialist (E-4) on 1 November 2010 and reduced to the rank of private first class (E-3) on 24 September 2012. b. A memorandum from the applicant’s commander dated 4 November 2012, notifying the applicant that he was disapproved for the award of the Army Good Conduct Medal for the period of Active Duty Service from 8 April 2009 to “Present” due to non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. The applicant acknowledged receipt and indicated he would submit his rebuttal. c. Special Court-Martial Order Number 2 dated 16 January 2014, issued by Headquarters, Fort Bliss, TX, that shows the applicant was arraigned and the proceedings were terminated on 15 October 2013. He had been charged with possessing spice and drug paraphernalia; assaulting a noncommissioned officer (NCO) by kicking him in the chest with his foot; and assaulting an NCO by pushing him with his body. On 31 October 2013, the General Court-Martial Convening Authority withdrew and dismissed all charges and specifications without prejudice. All rights, privileges, and property of which the applicant had been deprived by virtue of the proceedings were restored. 5. The applicant's service record is void of his separation packet and/or the facts and circumstances surrounding his discharge. However, his records contains: a. Orders 027-0020, issued by Headquarters, U.S. Army Garrison, Fort Bliss, on 27 January 2014, discharging the applicant from active duty on 30 January 2014. b. DD Form 214 that shows he was discharged on 30 January 2014, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for “misconduct (serious offense)”. He was given an under other than honorable conditions character of service. The applicant completed 4 years, 9 months, and 23 days of net active service this period. He was discharged in the rank and pay grade of private/E-1 with an effective date of pay grade of 22 January 2014. The applicant was awarded or authorized the: * Army Achievement Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Driver and Mechanic Badge – Mechanic * Driver and Mechanic Badge with Driver-Wheeled Vehicle(s) Clasp 6. On 6 November 2018, in an Army Discharge Review Board travel panel hearing conducted in San Antonio, TX, the Board voted unanimously to deny the applicant’s request for an upgrade of his discharge. 7. Army Regulation 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). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. a. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. b. 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. 9. In regards to the applicant's request for a personal appearance, Army Regulation 15- 185 (ABCMR), 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. 10. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board noted that the applicant provided insufficient evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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. 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 Army Board for Correction of Military Records (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 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). In pertinent part, it 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. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. a. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. b. 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. 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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008982 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1