IN THE CASE OF: BOARD DATE: 1 March 2022 DOCKET NUMBER: AR20210015619 APPLICANT REQUESTS: reconsideration of his previous request upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Letters of Support * Certificates of Appreciation * Certificates of Training * Proof of Employment * Technical College Transcript * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR201100 on 29 March 2012. 2. The applicant states, in effect, he's accomplished many trades since receiving his under other than honorable conditions discharge from the United States Army. he has been employed with the City of Birmingham since 2012, received his CDL License and other licenses associated with city and county campaigns in order to give back to society. He is requesting his DD Form 214 be changed from an under other than honorable discharge to an honorable discharge. He is also a crew leader for the City of Birmingham. 3. The applicant provides the following documents for the Board's consideration: a. A letter of support from a co-worker, which states, in effect, the applicant has worked as a Landscape Crew Leader for the last nine years. The author has been well acquainted with him as an employee of the City of Birmingham. The applicant has a number of strengths. He has exceptional technical skills. He operates all of the heavy equipment and seems to get the most productivity out of individuals. He is a very fast learner and very punctual when arriving to work. The author would highly recommend the applicant as an individual of forthright character. b. A letter of support from a neighbor, which states, in effect, the applicant has been a good neighbor in their church community for several years. The applicant is well liked by the neighborhood and has made the community a better place to live. The author would recommend the applicant as an exceptional individual. c. A letter from a city commissioner, which states, in effect the applicant regrets his mistakes of his past and has worked to be a better person since. She has known the applicant for over 25 years. He has been an upstanding individual in the community and teens look up to him and admire him. He is known in the community for his upbeat and fun-loving personality who draws people to him and the youth listen to his guidance. The applicant has become involved in civic engagement, volunteering and encouraging other to become informed about politicians and to get out and exercise their civic duty. He embodies the very nature of an ideal citizen, wanting better for his community and puts forth an effort to make it better. d. A letter of support from high school classmate and close friend, which states, in effect: (1) She is a high school classmate, close friend and fellow service member. She has known the applicant for over 40 years. They lost touch with each other right before graduation. She had been in the Navy for a few years and took a road trip with her companion and stopped at a random restaurant to eat and upon entry she saw the applicant at the restaurant. They greeted each other with a hug and chatted for a while to catch up. Before departing, he showed her he carried her senior picture. (2) Due to the constant moving, they lost touch again for a long time, but at their 30th class reunion they reunited and have kept in close regular contact ever since. They eventually caught up on their military and family lives and the unfortunate situation he found himself in when he was in Fort Polk, LA. He had no one to advocate for him on behalf of the military. What can a young Soldier do when up against the Uniform Code of Military Justice (UCMJ) with no one to support you? In times of conflict, the commander, or the justice normally sides with the more senior person. Up to that point, the applicant had a stellar career and service record and spent his time in the company of senior noncommissioned officers (NCO) and officers. They favored him as a person and as a Soldier. (3) As a Sailor or Soldier, they are obligated or ordered to abide by the rules of those more senior to us, whether they agree with them or not. Sometimes those rules and regulations go against their morals and they feel the need to take a stand - and suffer the consequences. And suffering the applicant did, by being held accountable for his actions and sent to the brig, however biased and unfair that may have been. They have always known that bias and racism existed in the Armed Forces. In recent years, it has become more widely known that this is more prevalent in the Army than the other service branches. The applicant took his punishment as he acknowledged his wrongdoing and that was that. Life does go on and it did; however, he does feel his punishment and eventual other than honorable discharge was more extreme than it should have been. At that point, a rebuttal was futile. (4) Years ago, the military took his discharge characterization and that was final. Now, the applicant has the opportunity to have his discharge upgraded in hopes of a second chance. (5) The applicant was in Florida when they reconnected the second time. He has since moved back to his home state of Alabama, bought a home, has a job with the City of Birmingham, and worked on many campaigns. He has hosted cookouts and community events to support several communities in Birmingham. The applicant works with Kappa Alpha Psi Fraternity, incorporated as a mentor to you men ages 14 to 19 years of age. He is an adoring father and has a close-knit family. He dotes on his two- year-old son and they do practically everything together and are seen everywhere together. (6) When the applicant was around his former classmates, he felt he would not warmly be received, after his military confinement and since he didn't attend any previous events. He discovered they were not there to judge him and embraced the man they knew him to be. He was more than warmly received; he was crowned King of their collective class of 1980 50th birthday celebration. As a class, there were hugs and warm greetings galore. He has not missed a class even since. (7) Now, if the Board will rally around the applicant like the City of Birmingham, local civil organizations, church family, and community and realize that mistakes were made, accountability was served and emerged on the other side a well-adjusted citizen and team player. He should be afforded the privileges that all honorably discharged service members deserve. The Army is grappling with calls to rechristen bases named for Confederate generals. While post exchanges have opened their doors to all eligible veterans, the hope the Board will make a favorable decision so the applicant's discharge can be upgraded. Since he is taking the necessary steps to upgrade his military discharge, the author would hope the Board would do the right thing and upgrade his discharge. He is very deserving and has been a model citizen and done a lot for his state, community, and family. One mistake, with the opportunity for reparation, should not shadow what would have otherwise been a stellar career. Please help make his military story a more favorable one. (8) The applicant is personable, dependable, hard-working, honest, and courteous. He enjoys life and loves to make people laugh. e. Certificates of Appreciation/Training for: * in recognition of his outstanding service, 22 November 2019 * Leadership Roundtable, 23 February 2018 * Computers Made Simple, 12 January 2017 * Excel 2010 Fundamentals, 2 February 2017 * The Supervisors Job, 6 June 2019 * Resolving Customer Service Challenges, 26 March 2019 * Delegating Authority, 29 May 2019 * Creative Problem Solving, 21 March 2019 f. Proof of employment with the City of Birmingham. g. Transcripts from Bessemer State Technical College. h. A letter from the Chief of Staff for the mayor, which states, in effect, he has known the applicant for quite some time, as an employee in their Department of Public Works. He is a man of high moral character and integrity. The applicant exemplifies a strong work ethic and has a willingness to serve his community. He is incredibly dedicated, positive, and conscientious in whatever endeavor he undertakes. His hard work and enthusiasm are second to none and is evidenced by his pursuit and drive for quality. 4. On 18 April 1980, the applicant, at the age of 17 years old, enlisted into the US Army Reserve (USAR) delayed entry program (DEP) for 8 years. There was no evidence of a parental waiver for the applicant joining prior to the age of 18 years old. 5. On 13 August 1980, he was discharged from the USAR DEP and entered active duty for a period of 4 years. His DA Form 2-1 (Personnel Qualification Record) does not show he attended basic training or advanced individual training; however, it shows his duty station was Fort Polk, LA. On 23 April 1984, the applicant reenlisted in the Army for a period of 6 years. 6. On 14 October 1987, the applicant accepted nonjudicial punishment (NJP) for violating a general order and wrongful solicitation of three blank ration cards. His punishment included reduction to the grade of Specialist/E-4 (SP4), and forfeiture of $250 pay per month for two months. The applicant appealed the punishment and submitted additional matters completed by his defense counsel. The applicant's appeal was denied. The additional matters state, in effect: a. On 27 October 1987, an NJP hearing was held. The applicant was found guilty of violating a general regulation for wrongfully possessing more than one ration card and for soliciting another to commit a crime. b. The regulation violated does not apply to the case at bar because the specific language of the regulation provides that personnel will not possess or use more than on ration card made out in the name of the same person during a ration card period. The applicant is accused of possessing blank ration cards. Since the alleged ration cards were not made out in the name of the same person the regulation is inapplicable to the case at hand, and this charge should have been dismissed. c. The second charge of soliciting another to commit a crime should be dismissed for the same reason. Because charge one fails to state a violation of a regulation, charge two also fails to state a violation of a crime. d. If the applicant is to be charged under that specific regulation for allegedly tipping, bribing, or otherwise influencing employees of the United States for the purpose of obtaining a ration card, then charge two must be dismissed because it is multiplicious with charge one. The applicant should not be charged for violating the same offense in two different ways, therefore, charge two should be dismissed. e. In addition, the evidence failed to prove the applicant's guilt beyond a reasonable doubt. The case rested on the word of a SPC M. whose reliability was seriously in question. SPC S. testified at the NJP hearing that he has known SPC M. for one year and works with him on a daily basis. He stated the SPC M. is a dishonest and untrustworthy person. SPC S. testified that the SPC M. would lie to gain the respect of superiors and to put himself in the limelight. f. Sergeant First Class (SFC) B. stated he is SPC M's supervisor and had daily contact with him. SFC B testified that SPC M. is not a trustworthy person and has lied to him before. He also stated that SPC M. likes to be the center of attention, and that he could be trying to make points so that the appeal of his own NJP would be favorably looked upon. SPC S. and SFC B agreed that SPC M credibility is weak. g. On the other hand, the applicant is an honest person. SFC Z. testified that he has known the applicant for ten months and that he is a good NCO. SFC Z. stated that these charges are out of character for the applicant. Staff Sergeant (SSG) H. testified the applicant is an honest person and a good worker. Sergeant (SGT) S. stated the applicant is a professional and reliable NCO. These witnesses agreed that the charges are out of character for the applicant. h. Because SPC M's poor reputation for honesty is in contrast to the applicant's honest character. The applicant must be given the benefit of the doubt and he must not be found guilt of the charges based on one unreliable person's word. Thus, the evidence failed to prove the applicant guilty beyond a reasonable doubt. i. Furthermore, the punishment given to the applicant of reduction to SPC and forfeiture of $250 for two months was too severe. The applicant PCS'd on 29 October 1987 to a new unit. He should be able to get a fresh start at his new unit without the stigma of a reduction. The applicant also has a wife and two children to support and the reduction will make them suffer financially. j. For the foregoing reason, the two charges should be dismissed for failure to charge a violation of a law. If the findings are approved, the sentence of reduction to SPC should be suspended for six months. 7. On 7 January 1988, a Memorandum for Record Subject: NJP states, in effect, on 7 January 1988 at 0715 the commander received a phone call from another captain (CPT) in reference to the applicant. The CPT stated the applicant received NJP prior to his departure from Germany and was reduced from SGT to SPC. He stated the applicant appealed his NJP but that it was denied. The CPT stated he would forward the NJP to the applicant's new command. 8. On 3 February 1988, the applicant wrote a memorandum subject Appeal of NJP to his new commander, which states, in effect: a. He requested the commander consider his appeal to punishment imposed by NJP. b. On 27 October 1987, punishment was imposed upon him through NJP by his former battalion commander. The applicant appealed the punishment. On 29 October 1987, he signed out of his unit in Germany on Permanent Change of Station (PCS) leave. The appeal was denied by his former brigade commander on 21 November 1987. c. Despite the legal review apparently conducted pursuant to his appeal, the appeal was improperly decided by his former brigade commander. When he departed the command on PCS leave, he was no longer assigned to the command. In this circumstance, the appeal should have been decided by the authority next superior to his present commanding officer able to impose like punishment. Thus, the case should have been forwarded to his new command for final resolution. d. The applicant asked his commander to carefully consider the matters raised in his appeal as well as the additional items concerning his qualifications and training. He asked at the least that the reduction be suspended to allow him to prove that the trust and confident reposed to him as an NCO was well deserved. 9. On 7 February 1988, a Military Police Report shows the applicant was subject of unlawful use of his military identification card. 10. On 22 February 1988, the applicant received a General Counseling Form which states in effect: a. On 27 October 1987, the applicant received NJP. As a result, he was reduced to SPC. He appealed his punishment on 28 October 1987 and indicated that he wanted to submit additional matters. The applicant departed Germany prior to the time of his appeal was considered. b. On 21 November 1987, the applicant's appeal was denied. On 14 December 1987, the applicant reported into his new company with orders stating he was a SGT and wearing SGT rank. c. On or about 7 January 1988, the commander received a phone call from Germany asking what rank the applicant was wearing. It was at that time, the commander was informed the applicant had received NJP in Germany and was reduced to SPC. d. On 12 January 1988, the applicant's former brigade commander wrote a letter to his new commander informing him the applicant was reduced to SPC prior to his departure from Germany. Attached to the letter were two enclosures of previous NJPs given to the applicant, while in Germany. One NJP was dated 16 June 1987 and the other NJP was dated 27 October 1987. e. The applicant was counseled on the fact that when he received the NJP the punishment was effective immediately, which meant he was a SPC as of that date. The applicant was further informed that by arriving and signing into his new company as an NCO, when in fact he was a SPC, that he was in violation of the UCMJ (Impersonating an NCO). The applicant was informed that he could be court-martialed and if found guilty could receive the maximum punishment of dismissal of all pay and allowances and confinement for two years. f. The applicant responded to the counseling stating, he non-concurred because of the fact that he had informed his first sergeant (1SG) on what happened and he had an appeal to his NJP. When he left Germany, his lawyer had stated that the NJP was done wrong. 11. On 22 February 1988, the applicant received a General Counseling Form, which states, in effect: a. At approximately 0130, on 7 February 1988, the applicant was observed passing his military identification card to a private first class (PFC) for the purpose of gaining access to the NCO club. When the PFC showed the ID card to the NCO club manager, it was noted the card did not match the user. The club manager confiscated the ID card and called the military police. The applicant was apprehended by the military police and transported to the PMO where he was advised of his rights. The confiscated ID card showed it was issued to the applicant. b. On 7 January 1988, the applicant's commander received a phone call from his previous commander indicating that applicant had received NJP prior to his departure from Germany and as a result was reduced to SPC and would forward the NJP to the applicant's new command. c. On or about 7 January 1988, the first sergeant (1SG) called the applicant into his office and advised him of the phone call from Germany and had the applicant remove his SGT rank and replace them with SPC rank. On 1 February 1988, the applicant was issued an ID card, which reflected his correct rank of SPC. He again went to personnel and was issued another ID card on 10 February 1988. d. The applicant non-concurred to the words in the statement because he didn't give his ID card to the PFC. The PFC grabbed it out of his hand and showed it to the NCO club. The applicant then realized it was his ID card. 12. On 8 March 1988, the applicant was given NJP for the wrongful use of his military ID card, wrongfully loaning his military ID card to PFC, and wrongfully impersonating an NCO. The applicant declined the NJP and demanded trail by court-martial. 13. On 17 March 1988, SPC S., who was an enlisted records clerk, made a sworn statement, which states in effect: a. She was an enlisted records clerk in the records section. Sometime in January 1988, she was working in the in processing section when he was approached by the applicant. b. The applicant said he had just gotten to Fort Polk from Germany and that his commander had given him NJP the day before he left his old unit. The NJP had not gotten to his new unit yet. He then asked SPC S. if she would destroy the NJP for him. He told her he'd do anything, give her money, or take her to dinner. She told him no. c. The next time, SPC S. saw him as at the Enlisted Records section. He said he wanted to look at his file and needed to get something out of it. He said he wanted to get his ID card picture and application out of the record because it had something on there it shouldn't. d. SPC S. told the applicant she did not have the record and it was over at promotions. The applicant asked if she thought they would give him the record and she said no. She told him to go to promotions and try. He went to her on two occasions regarding the issue. e. SPC S. received the applicant's file, through distribution, in March 1988 and noticed it was missing several documents. His NJP and promotion packet were missing. His DA Form 2-1 had been typed before he got to Fort Polk and was not done correctly. It was not completed by someone who was qualified to complete it. 14. On 17 March 1988, a SGT completed a Sworn Statement, which states in effect she worked as a promotion clerk next to the enlisted records section. She was reviewing the promotion packet of the applicant and went to the Enlist Records Section to find his personnel file. She was told the applicant was actually a SPC and was thought to have had NJP at his last unit. She reviewed his file and observed he had signed for an ID card reflecting he was a SPC. She brought it up with her boss and called the criminal investigation division. 15. On 17 March 1988, SPC P. completed a Sworn Statement, which states in effect he is a records clerk. In early January 1988, the applicant went into his section and asked if he record had arrived from his last unit; however, only a temporary record was available. The applicant went to the office again about a week later and asked if his record had made it from Germany and it had not. SPC P asked the applicant why he needed his record to which the applicant responded he wanted to see if his NJP had come with his record. 16. On 18 May 1988, the applicant's commander preferred court-martial charges against the applicant for impersonating an NCO on three occasions and soliciting a Soldier to destroy a public record. 17. In an undated memorandum, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one had subjected him to coercion and counsel had advised him of the implications of his request. He elected not to submit statements in his own behalf. 18. On 9 June 1988, the separation authority approved the applicant's request and directed his under other than honorable conditions and ordered the applicant's rank reduction to private/E-1. 19. On 23 June 1988, the applicant was discharged accordingly. His DD Form 214 shows he completed 7 years, 10 months, and 11 days of active duty service. He was awarded or authorized the Army Service Ribbon. 20. On 2 April 2012, the applicant received a letter from the Army Board of Correction of Military Records (ABCMR) denying his application for an upgrade of his discharge. 21. The Board can consider the applicant’s petition, her arguments and assertions, and her service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially 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. “1. A majority of the Board found relief is warranted for clemency reasons. Although the applicant's service did not rise to the level required for an honorable discharge, given his length of service and achievements over 7 plus years, after reviewing the application and all supporting documents, a majority of the Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. “2. The member in the minority found insufficient evidence to support relief. The applicant impersonated an NCO on three occasions and solicited a Soldier to destroy a public record. Instead of a court-martial which could have given a harsher characterization of service, the applicant was allowed to request a voluntary discharge which also led to his under other than honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X: X: : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : X: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR201100 on 29 March 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 23 June 1988 showing his character of service as General, Under Honorable Conditions. 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 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable character of service represented a separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge could be furnished when subsequent honest and faithful service over a greater period outweighed any disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to provide the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was then required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. Paragraph 10-8 (Discharge Certificate Issued) stated commander normally were to issue an under other than honorable conditions character of service to Soldiers voluntarily requesting discharge under chapter 10; however, the regulation gave separation authorities the authority to direct a general discharge under honorable conditions, when merited. 2. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures for the personnel management of enlisted Soldiers. Paragraph 6-11 (Approved for Discharge from the Service under Other than Honorable Conditions) stated, when a general court-martial authority (GCMCA) decided to discharge a Soldier under other than honorable conditions, the GCMCA would concurrently order the reduction of the Soldier to the lowest enlisted grade. Board action was not required for this reduction, and the regulation did not specify how separation authority was to notify the Soldier. 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. 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) AR20210015619 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1