IN THE CASE OF: BOARD DATE: 1 February 2022 DOCKET NUMBER: AR20210012128 APPLICANT REQUESTS: The applicant requests upgrade of his under honorable conditions (general) discharge to honorable, APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-Authored Letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 his application and self-authored letter, in effect: a. His discharge was related to an incident that required his direct disobedience due to his first sergeant's (1SG) refusal to exchange the applicant's parachute. b. During equipment check, his canopy release assembly came apart twice, correct procedure is to exchange the parachute, but his 1SG said the applicant would be fine and rushed him on the plane to meet the brigade jump, during their training in the Mojave Desert. c. The 1SG said not to worry, when the applicant requested a new parachute and stated they could not exchange the parachute because they were behind schedule and the applicant shouldn't worry because he had a reserve. d. Once on the plane, the applicant refused to jump unless he received a parachute that passes inspection. The 1SG gave the applicant a direct order to to jump and the applicant refused because of the 1SG's inadequate and unreasonable request to place the applicant's life in danger over a training exercise. e. It was a mass jump, in the dead of the night, with no immediate need to face such danger. He was out casted upon their return to base and court-martialed, a process that was probably made to break him. f. He had no legal representation and represented himself. He was young with no presence of how and what he could say to protect himself. This is a scenario that replays in his imagination constantly. g. As a young man, he blamed himself but as he matured, he realized he was never wrong, up until this critical moment he was an exemplary Soldier who strived to serve his country with pride and recognition. h. He asked the Board to review the matter to determine the reasonable outcome as he feels it was handled with poor judgement. 3. On 27 August 2001, the applicant, at the age of 20 years old, enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years. On 8 November 2001, the applicant was discharged from the USAR DEP and entered active duty for a period of 4 years. 4. The applicant's service record do not show when he completed basic training or advanced individual training; however, on 3 July 2002, orders were published awarding the applicant the Parachutist Badge effective 19 July 2002 or upon completion of Airborne training. 5. On 26 October 2002, a staff sergeant (SSG) made a sworn statement, which states he was serving as the Departure Airfield Control Officer. He received notification of two jump refusals. Once the aircraft landed, he took control of the jumpers from the airborne safety officers. He led the jumpers to the hanger. Prior to asking them question, the captain (CPT) read the Soldiers their rights. Under the supervision of the rigger, he and another Soldier conducted Jump Master Personnel Inspection (JMPI) on both jumpers. the SSG found no deficiencies on the applicant's parachute. Once the SSG completed the JMPI another Soldier conducted a technical inspection of both jumpers while they were rigged. The Soldier informed the SSG he found no deficiencies. Once completed the SSG turned the jumpers over to the CPT for movement to the National Training Center and return to their units. 6. On 26 October 2002, a Sergeant First Class (SFC) made a sworn statement, which states while conducting an airborne operation, two Soldiers elected to be jump refusals. As the SFC attempted to move to the paratroop door, his equipment became entangled with one of the jump refusal's equipment. He repeatedly attempted to move around the individual so he could exit the aircraft. On his final attempt, his foot caught on the jump refusal and he tripped and fell to the floor of the aircraft. He attempted to get back up, but could not. After all of the jumpers exited the aircraft, the safety moved to the forward portion of the aircraft and helped him up. 7. On 26 October 2002, a SSG made a sworn statement, which states approximately 25 minutes to time on target, some paratroopers started yelling for the safety. The safety made his way to the forward portion of the aircraft where he met with a Soldier who was sick and wasn't going to jump. The safety let the jumpmaster know there was a jump refusal and at that time, the applicant stated he didn't trust his main parachute and he wasn't going to jump either. The safety talked to the applicant, who had decided to jump. When the jump commands started, neither the other Soldier nor the applicant hooked up to jump. After all the jumpers exited the aircraft, the safety gave an order to the applicant and other Soldier not to touch their equipment. 8. On 26 October 2002, a CPT made a statement, which states: a. Approximately five minutes before the 20-minute warning, on a jump, jumpers on the right door of the chalk two jumpers got his attention as he was serving as the safety for that stick. b. He moved toward the front of the aircraft he was told a Soldier was too sick to jump. The CPT moved to the aft of the aircraft and informed the 1SG that a Soldier was claiming to be too sick to jump. The CPT moved back to the front of the aircraft, and confirmed who the Soldier was and the Soldier again said he was too sick to jump. The CPT asked the Soldier if he was refusing to jump and the Soldier said he was. The CPT went back and told the 1SG the Soldier was a jump refusal. c. At that time, the applicant told the CPT he didn't feel good. The CPT asked him what was wrong and the applicant said he was worried his parachute wouldn’t work. The CPT told the applicant would be fine and he would feel better when he got out of the aircraft, then all he would have to do would be to put his knees and feet together, relax and he would be all right. d. The applicant stated he didn't think his main would open and that he wasn't worried about landing. The CPT told the applicant to do what he'd been trained to do and to do what he'd done a bunch of times before and he'd be okay the applicant had two parachutes and one of them would work. The applicant told the CPT he was okay and he would jump. e. The CPT remained in the vicinity of the applicant while the jump master started issuing jump commands. The CPT moved to the front of the aircraft at the jump command Get Ready. At that time, the first Soldier would not stand up and hook up. The CPT asked him is he was going to jump and he said no. At that time, he told the Soldier he ws a jump refusal and the CPT gave him a lawful order not to touch his equipment and to put his hand over the top of his helmet. f. The CPT began to inspect the static lines and when he got to the applicant, the applicant told him he wasn't going to jump. The CPT seated the applicant at the forward in the aircraft as he could and gave him a lawful order to not touch any of his equipment and to put his hands on his helmet. g. The CPT continued to inspect static lines and moving toward the front of the aircraft. The 1SG began exiting paratroopers. After all the paratroopers, except the two jump refusals had exited the aircraft, the CPT went back to ensure the two jump refusals were belted into the aircraft and that they had not touched their equipment and to keep their hands on top of their helmets. 9. On 2 December 2002, the applicant received a Developmental Counseling Form, which states on 26 October 2002 the applicant refused to jump during a National Training Center (NTC) rotation. The applicant agreed with the counseling and signed the form. 10. On 3 December 2002, a CPT made a sworn statement, which states he was the S-3 Air for the battalion jump at NTC on 26 October 2002. He was made aware that there were two jump refusals aboard the second lift, one of which was the applicant. The SSG moved to the ramp of the aircraft to where the jump refusals were located. They were both sitting with their hands on their heads. The Soldiers were escorted to a well-lit area. They kept their hands on their heads the whole time. The SSG read them their rights at which time, they requested a lawyer. At that point another SSG performed JMPI and noted no deficiencies a rigger also inspected the parachutes and found no deficiencies. The Soldiers then stated they needed to be seen medically and a physician's assistant was called and they said they did not ask for medical assistance. The SSG handed them over to a Soldier from their unit and ensured the unit understood they were not to be questioned until they had seen a lawyer. 11. On 3 December 2002, a 1SG made a sworn statement which states, he was the primary jumpmaster on 26 October 2002 going into NTC. A few minutes before giving the 20-minute time warning his safety informed him a Soldier refused to jump. The 1SG told the safety to keep the Soldier seated, when the 1SG started his jump commands. After the 1SG gave his 20-minute warning, he was informed the applicant had also refused to jump. The 1SG told the safety to keep them both seated in the front of the aircraft. After all of the jumpers excited the aircraft, he saw another who had fallen on the floor and was trying to get up. That jumper was a scratch because the 1SG felt his equipment had been jeopardized when he fell. The 1SG then checked his static line and excited the aircraft. 12. On 26 December 2002, the applicant commander preferred charges against the applicant for failing to obey a lawful order from a senior noncommissioned officer (NCO) and for dereliction of duty for willfully failing to participate in airborne operations. On 28 January 2003, the applicant, at a summary court-martial, was found not guilty of disobeying a lawful order and guilty of dereliction of duty. His sentence included reduction to the grade of Private/E2 (PV2), forfeiture of $767, and confinement for 30 days. 13. On 20 February 2003, a legal review was completed on the summary court-martial and it was found the court-martial had jurisdiction over the applicant and each offense of which he was found guilty, each specification of which the applicant was found guilty stated an offense, and the sentence was legal. 14. On 16 April 2003, a Report of Medical Examination was completed on the applicant and shows the applicant was qualified for service or separation processing. His Report of Medical History did not show he had any medical issues. 15. On 23 April 2003, a Developmental Counseling Form shows he was being counseled because he was being recommended for removal from the service under the provisions of Army Regulation 635-200 ((Active Duty Enlisted Administrative Separations), chapter 14-12c, commission of a serious offense, pertaining to his SCM. The second page of the counseling form was not available for the Board's consideration. 16. On 28 April 2003, the applicant underwent a Report of Mental Status Evaluation, which shows there was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. He was psychiatrically cleared for any administrative action and or training deemed appropriate by the command. 17. On 28 May 2003, the applicant's commander advised him, that he was initiating separation action against the applicant under the provisions of paragraph 14- 12c (Commission of a Serious Offense), Army Regulation (AR) 625-200 (Personnel Separations). As his basis for this action, the commander cited the applicant wrongfully failing to perform an airborne operation curing the NTC deployment. The commander indicated he was recommending the applicant for a general discharge under honorable conditions, but the separation authority would make the final determination. 18. The applicant's election of rights memorandum was not available for the Board's consideration. The applicant's chain of command recommended approval of the discharge and on 3 June 2003, the appropriate separation authority approved the commander's separation recommendation and directed the applicant's under honorable conditions (general) discharge. 19. On 19 June 2003, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed 1 year, 7 months, and 12 days of active service this period. He was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Expert Marksmanship Badge with Rifle Bar * Parachutist Badge 20. By regulation (AR 635-200) a. During the applicant's era of service, commanders could initiate separation action under paragraph 14-12c, AR 635-200 when Soldiers had committed a serious offense for which the UCMJ's maximum punishments authorized a punitive discharge. The regulation indicates an under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. b. Per the Manual for Courts-Martial in effect at the time both of the charges the applicant was charged with included a punitive discharge as part of their maximum punishment. c. 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: 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 consideration of discharge upgrade requests. The applicant asks the Board to upgrade his character of service stating he was discharged because he refused to jump out of an airplane after he had asked his 1SG to chain out his parachute due to the release assembly comping apart twice prior to the jump. He fails to explain why he did not follow jump order when the equipment was deemed in good working condition by subject matter experts. 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 and the applicant provided 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, USC, 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was 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. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12c, was separation of Soldiers when they had committed a serious offense for which the UCMJ's maximum punishments authorized a punitive discharge. The regulation indicates an under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. 3. Per the Manual for Courts-Martial in effect at the time both of the charges the applicant was charged with included a punitive discharge as part of their maximum punishment. 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. 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 (to include that provided by an applicant), 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) AR20210012128 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1