IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210013589 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. 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) * Self-written statement * Multiple State of Florida vs. the applicant documents showing his conviction, sentencing, and appeal 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 pursuant to Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) his separation was premature to be characterized as other than general. In pertinent part, AR 635-200 states: “that a Soldier may be separated when initially convicted by civil authorities.” He was separated on 12 May 2005 (see DD Form 214). However, he was not convicted until 20 February 2009 (see Judgement sentence). He was detained pending trial when he was separated (see Walker v. State, 160 So. 3d 908, Fla.2d DCA 2013). He also references the “Gatha of Atonement”. 3. On 4 October 2001, the applicant enlisted in the Regular Army for a period of 4 years. He was promoted to sergeant/E-5 on 1 August 2004. 4. On 14 May 2005, the applicant was taken into custody by Pinellas County (Florida) Sheriff Department for being charged with committing two (2) armed robberies. His duty status was changed to confined by civil authorities. 5. On 5 January 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct - commission of a serious offense, specifically for committing two (2) armed robberies on 13 May 2005 in St. Petersburg, Florida. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 6. On 18 January 2006, the applicant consulted with legal counsel. He was advised of the basis for his contemplated separation and its effects, the rights available to him and the effects of a waiver of his rights. The applicant requested consideration of his case by an administrative separation board. He did not submit a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. 7. On 16 March 2006, the applicant was notified to appear before an administrative separation board, and he was advised of his rights. 8. On 28 March 2006, the administrative separation board convened and the applicant's counsel represented him because he was incarcerated. The separation board recommended the applicant be discharged with a characterization of UOTHC. The Board found by a preponderance of evidence that the applicant committed two armed robberies. 9. On 14 April 2006, the applicant submitted a rebuttal appealing the recommendation of the ASB. On the same date, the legal office opined that the administrative separation packet met all requirements outlined in AR 635-200, paragraph 14-12(c). 10. On 28 April 2006, the separation authority approved the recommendation of the administrative separation board and directed the applicant's discharge with a characterization of service of UOTHC. 11. On 12 May 2006, the applicant was discharged from the Army. His DD Form 214 shows he was discharged in accordance with chapter 14, paragraph 14-12c, of Army Regulation 635-200 for misconduct (serious offense) with a characterization of service of UOTHC. He completed 3 years, 7 months, and 10 days of net active service this period. His Separation Program Designator code (SPD) was listed as JKQ and his RE code was listed as 3. The applicant's record of service indicates he accrued 364 days of time lost for being confined by civil authorities from 14 May 2005 until his day of discharge. 12. On 19 October 2012, the applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 26 April 2013, the ADRB voted unanimously to deny his request and determined he was properly and equitably discharged. 13. The applicant’s contentions and supporting documents were reviewed and considered by the Board; nevertheless, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. The evidence of records show the Administrative Separation Board found by a preponderance of evidence that the applicant committed two armed robberies, and recommended that he be discharged from the Army under other than honorable conditions. 14. 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. 15. 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, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. 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 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. The regulation also states, in pertinent part: a. A Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 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. Whenever there is doubt, it is to be resolved in favor of the individual. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 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 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) AR20210013589 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1