IN THE CASE OF: BOARD DATE: 4 March 2022 DOCKET NUMBER: AR20210010240 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Self-Authored Letter, undated * Character Letter, 14 May 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 he acknowledges the mistakes that he made during his time in service. He came in the service at a young age, and at that time he was very immature and arrogant. However, he still became a very good Soldier by scoring 300 on the Army physical fitness test, an expert marksman, and always got to run with the battalion Sergeant Major or senior personnel he reported too. He still carries with him the core values that were taught in basic training, and he is a minister looking to become a pastor. 3. On 6 June 2000, at the age of 18 years, 8 months, and 15 days the applicant enlisted in the Regular Army for 3 years. a. A DA Form 2-1 (Personnel Qualification Record - Part II), shows the applicant was promoted to the rank of private two (PV2/E-2) with a date of rank (DOR) of 6 December 2000. b. While assigned to Headquarters and Headquarters Company, 1st Battalion, 16th Infantry, Fort Riley, KS between 6 December 2000 and 1 January 2001, he was promoted to the rank of private first class (PFC/E-3). c. An Enlisted Record Brief, dated 1 February 2003, shows at 18 months and 27 days in service he was promoted with a waiver to the rank of specialist (SPC/E-4) with a date of rank (DOR) of 1 January 2002. d. On 12 March 2002, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), and was reduced in rank from SPC to PFC with forfeiture of $200.00 pay per month for 2 months, and 45 days’ extra duty and restriction with supervision for: * disobeying a lawful order by a noncommissioned officer (NCO), to not drive his privately owned vehicle (POV), did so at Fort Riley, KS on or about 18 December 2001 * violating a lawful general regulation (Fort Riley Regulation 190-5 (Motor Vehicle Traffic Supervision and Installation Traffic Code), Chapter 2), by failing to show proof of registration and insurance, failing to stop at the access control point, and failing to register his POV on post on or about 11 February 2002 e. On 17 June 2002, he was flagged for Elimination - Field Initiated effective 17 June 2002. f. On 16 July 2002, the applicant accepted NJP under the provisions of Article 15, UCMJ, and was reduced in rank from PFC to private (PVT/E-1) with forfeiture of $552.00 pay per month for 2 months (suspended, to be automatically remitted if not vacated before 12 January 2003), and 45 days’ extra duty and restriction with supervision for: * failure to go at the time prescribed to his appointed place of duty at Fort Riley, KS on or about 22 April 2002 * absent himself from his unit, Headquarters and Headquarters Company, 1st Battalion, 16th Infantry, 1st Infantry Division (Mechanized), located at Fort Riley, KS, on or about 24 April 2002 until on or about 9 May 2002 g. On 12 November 2002, the applicant was counseled by his platoon sergeant, for violating Article 91, insubordinate conduct toward a NCO, Article 117, provoking speeches or gestures, and Article 134, communicating a threat on 20 October 2002. On this date, at approximately 0400hrs he tried to bring his wife into building 7227 and was told by Corporal J__ that it was too late for visitors. After escorting her back to the car, when he saw Corporal J__, he told him that was a “bitch move” for not letting him bring his guest to his room. He exchanged words with SPC W__ and tried to fight with him. As a result, his platoon sergeant was going to recommend that his 16 July 2002 Field Grade Article 15 be vacated and that he be separated from the Army under Chapter 14- 12b for pattern of misconduct. h. On 3 December 2002, the applicant’s16 July 2002 NJP under the provisions of Article 15, UCMJ, was vacated for wrongful use of provoking words, wherein he said “you better watch your back, because you wouldn’t see it coming”, or words to that effect to another Soldier on or about 20 October 2002, and would forfeit $552.00 pay per month for 2 months. i. On 11 December 2002, the applicant accepted NJP under the provisions of Article 15, UCMJ, and received forfeiture of $552.00 pay for 1 month (suspended, to be automatically remitted if not vacated before 5 June 2003), and 14 days’ extra duty and restriction with an NCO escort for: * wrongful use of provoking words, wherein he said “you better watch your back, because you wouldn’t see it coming”, or words to that effect to Corporal J__ at Fort Riley, KS on or about 20 October 2002 * wrongful use of provoking words, wherein he said “I will get you when you least expect it,” to Corporal J__ at Fort Riley, KS on or about 20 October 2002 * wrongful use of provoking words, wherein he said “you better watch your back” to SPC W__ at Fort Riley, KS on or about 20 October 2002 * wrongful use of provoking words, wherein he said “step outside and let’s draw blood,” to SPC W__ at Fort Riley, KS on or about 20 October 2002 j. On 4 February 2003, his immediate commander notified him that he was being recommended for separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14, paragraph 14-12c (Commission of a Serious Offense), for committing four instances of violation of Article 117, provoking words and gestures; two instances of violation of Article 86, failure to be at appointed place of duty and absent without leave; violation of Article 91, disobeying a lawful order; and four instances of violation of Article 92, violate a lawful general regulation. The applicant acknowledged receipt of his commander’s intent to separate him. k. On 5 February 2003, the applicant consulted with legal counsel and was advised of the contemplated action to separate him under the provisions of AR 635-200, paragraph 14-12c (Commission of a Serious Offense), and its effects, and the rights available to him. He elected not to submit a statement on his own behalf. On this same date, his immediate commander recommended he be separated from the U.S. Army prior to his expiration term of service with a general under honorable conditions character of service under the provisions of AR 635-200, Chapter 14, paragraph 14-12c. l. On 7 February 2003, his intermediate commander recommended the applicant be separated prior to his expiration term of service with a general under honorable conditions discharge under the provisions of AR 635-200, paragraph 14-12c (Commission of a Serious Offense). m. On 10 February 2003, the separation authority restricted the applicant from entering or being within the limits of the U.S. military reservation at Fort Riley, KS, and approved an immediate separation under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (Commission of a Serious Offense), with a general under honorable conditions discharge. He waived a rehabilitative transfer per AR 635-200, subparagraph 1-16d (2) and determined the applicant was ineligible to be transferred to the Individual Ready Reserve. n. On 6 March 2003, he was assigned to the U.S. Army Transition Point, Fort Riley, KS for transition processing effective 10 March 2003. o. On 29 May 2003, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty under the provisions of AR 635-200, paragraph 14-12c (Misconduct) with a general under honorable conditions character of service. He completed 2 years, 8 months and 20 days of net active service during this period with lost time from 24 April - 8 May 2002 (15 days). His DD Form 214 shows in: * block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized) - Army Service Ribbon * block 24 (Character of Service) - Under Honorable Conditions (General) * block 25 (Separation Authority) - AR 635-200, paragraph 14-12c * block 26 (Separation Code) - "JKQ" * block 27 (Reentry (RE) Code) - "3" * block 28 (Narrative Reason for Separation) - Misconduct 4. In support of his application, the applicant provides a character letter from an elder of his church, dated 14 May 2021, it states he has served in the United Christian Ministries since October 2019, and was an ordained minister on staff since August 2020. He has been key in the life of the ministry, ensuring the message of the gospel is preached, practical application is understood, and that his life reflects it. The applicant has directed those sharing with the congregation to always understand the root cause of any issue, whether it be social, political or behavior. He has used his gifts to bring people off of the ledge of life challenges, serves the homeless, and participated in ministries to the community and members of the congregation. His service to this country continues in his service to mankind. 5. The applicant states being a Soldier came natural to him but his attitude was a problem, it got him into situations that should have never happened, and resulted in his dismissal from the Army. He realizes he made a terrible mistake and is only looking for a chance to redeem his honor. By doing so he would be able to put his family in a home, possibly be buried at a military yard, and more importantly, show his kids that the reason why he stands and places his hand over his heart means something more to him than what they think. It means that he served his country with pride, and that he was once glad to be call an American Soldier. a. His records show, after 21 months of service he received three record of proceedings under Article 15, UCMJ for disobeying a lawful order, four counts of violating a general regulation, failure to go at the time prescribed to his appointed place of duty, AWOL for 15 days, and wrongful use of provoking words within 9 months. b. He was separated with a general under honorable conditions discharge after completing 2 years, 8 months, and 20 days of his 3-year contractual obligation. 6. AR 635-200 states commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not product a quality Soldier. Chapter 14 separates members who demonstrate or display patterns of misconduct. 7. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicants 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. The Board found insufficient evidence of in-service mitigating factors for the misconduct. The applicant provided a letter of support, but no evidence of post- service achievements or letters of support to weigh 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. 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 :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 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system. It states: * promotion to SPC may be waived at 18 months’ time in service and 3 months’ time in grade * promotion to SPC without a waiver required 26 months’ time in service and 6 months’ time in grade 3. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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 14 (Separation for Misconduct) established policy and prescribes procedures for separating members for misconduct. 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 UOTHC discharge is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse. d. Paragraph 1-16d waived the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier. 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. 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. 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, 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. 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) AR20210010240 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1