IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20210012943 APPLICANT REQUESTS: change his narrative reason for separation from “misconduct” to “retirement.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Separation Approval Memorandum * All Army Activities (ALARACT) 019-2019, Implementation Guidance in Support of Army Directive 2018-22 (Retention of Non-Deployable Soldiers) FACTS: 1. The applicant states he requests his separation reevaluated. He is a 22-year Veteran who served as noncommissioned officer (NCO) in the Military Police Corps and was separated for misconduct. He adds: a. He has honorably served for his violations and poor judgment. However, his infraction is not indicative nor is a representation of the distinguished and prominent leader/mentor that he proudly exhibited while serving his country. He did not and refuses to minimize his negligent actions. He also refuses to minimize his 22 years served. During his active duty service, he was awarded prestigious awards and accolades synonymous with the long-standing history and traditions of the Regiment and U.S. Army, such as the Bronze Star Medal, Combat Action Badge, and Order of the Marcchausse. In addition to the humbling recognition, the Department of Veterans Affairs has declared him 100% totally and permanently of deserving compensation for in excess of 25 contentions of service-related disabilities. He discloses that information to illustrate the hard work that translates to medical conditions his body and mental state remains in due to the previously mentioned 20-plus years of arduous work. b. He requests to make note that his reentry code of "3" (Block 27) listed on his DD Form 214 is defined as follows: 'Individuals who are not qualified for continued Army service, but the disqualification is waiverable. Ineligible for enlistment unless a waiver is granted.” His final plea for retirement approval comes in the form of an ALARACT message. This approved doctrine declares that a Soldier notified of potential administrative separation may submit a request supported by this implementation, for retirement under any provision of law, will be approved in lieu of involuntary separation. While being channeled in the process of administrative separation, he was told from the staff at Personnel Control Facility (PCF, USAG Fort Sill, OK), that he was ineligible to apply or exercise this newly implemented Army doctrine. His final day of active duty, which equals his date of separation, (August 17, 2019); therefore, the ineligibility justification from the staff was incorrect. c. He acknowledges that he has lost more than the surface can reveal. He has lost his pride, self-confidence, and self-esteem. He remorsefully recognizes that he has let down his band of brothers, his unit, command, and regiment. With all that has transpired from his wrongdoing, he is proud to say that it has transformed him into a better father, man, and person. He graciously asks the Board for approval to retire a Soldier that has stood tall in the ranks and despite the arena, i.e., combat, peace keeping missions, and in the storm of disciplinary action. He is honored to have served and more honored to have served for the Soldiers and Family Members in and out of his formation. 2. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 June 1996 and held military occupational specialty 31B (Military Police). b. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Iraq, Honduras, and Bosnia. He was advanced to master sergeant (MSG)/E-8. c. On 11 May 2017, he was convicted by a general court-martial of: (1) Charge I (Dismissed) (2) Charge II. Two specifications of signing a false official document (DA Form 5960) with intent to deceive, in that it indicated he was married to; and two specification of signing a false official document (DD Form 1351-2) with intent to deceive, in that it indicated he was married to (3) Charge Ill two specifications of stealing entitlements, allowances, and per diem of a value of more than $500, the property of the U.S. Government. (4) Charge IV. One specification of falsely pretending that he was married to and by means thereof did wrongfully obtain from the U.S. Government services, of a value of more than $500, to wit: medical services for the benefit of c. The court sentenced him to reduction to staff sergeant (SSG)/E-6 and confinement for 6 months. d. The sentence was approved on 15 September 2017. The applicant was confined at the Personnel Control Facility, Fort Sill, OK from 11 May 2017 to 5 October 2017. e. On 8 March 2018, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12c, for commission of a serious offense. The reasons for the proposed action are that: * on or about 12 February 2013, at or near Fort Belvoir, VA, with intent to deceive, signed a false official document, DA Form 5960, indicating he was married to * on or about 15 October 2014, at or near Fort Bliss, TX, with intent to deceive, signed a false official document, DA Form 5960, indicating he was married to * on or about 15 October 2014, at or near Fort Bliss, TX, with intent to deceive, signed a false official document, DD Form 1351-2, indicating he was married to * on or about 12 February 2013, at or near Fort Belvoir, VA, with intent to deceive, signed a false official document, DD Form 1351-2, indicating he was married to * on or about 26 February 2013, at or near Fort Belvoir, VA, stole entitlements, allowances, and per diem of a value of more than $500, the property of the U.S. Government. * on or about 3 November 2014, at or near Fort Bliss, TX, stole entitlements, allowances, and per diem of a value of more than $500, the property of the U.S. Government. * between on or about 21 March 2012 and 7 July 2016, on divers occasions, at or near El Paso, TX and Fort Belvoir, VA, with intent to defraud, falsely pretended to the U.S. Government that he was married to and by means thereof did wrongly obtain from the U.S. Government services, of a value more than $500, to wit: medical services for the benefit of such conduct being of a nature to bring discredit upon the Armed Forces f. On 17 April 2018, the applicant indicated he had been advised by his consulting counsel of the basis for the contemplated action to separate me for Commission of a Serious Offense under AR 635-200, Chapter 14-12c and its effects; of the rights available to him; and of the effect of any action taken by him in waiving my rights. He requested consideration of his case by an administrative separation board and appearance before such board. He understood that he may expect to encounter substantial prejudice in civilian life if a general (under honorable conditions) discharge is issued to him. He further understands that as the result of Issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life: g. The immediate commander initiated separation action against the applicant. He recommended an under honorable conditions discharge. The senior commander recommended approval with the issuance of an under other than honorable conditions discharge. h. On 7 June 2018, an administrative separation board convened at Fort Sill, OK, to consider the applicant’s case. The administrative separation board found by a preponderance of the evidence the applicant did commit the offenses in question and that these offenses warrant separation. The administrative separation board recommended his separation from active duty with the issuance of an under other than honorable conditions discharge. i. On 10 August 2018, memorandum from the Commanding General, Headquarters, U.S. Army Fires Center, Fort Sill, OK, to the Commander, U.S. Army Human Resources Command, Subject: Administrative Separation Under AR 635-200, Chapter 14-12c, Commission of a Serious Offense, [Applicant], stated: “After careful consideration of [Applicant’s] file, the documentation submitted, the chain of command recommendations, the Soldier's matters, and the board's findings and recommendations, I recommend that the Soldier be separated from the U.S. Army with a General (Under Honorable Conditions) characterization of service.” j. On 18 April 2019, the Deputy Assistant Secretary of the Army (Review Boards) reviewed the separation packet and ordered the applicant discharged from active duty with a general, under honorable conditions discharge. k. Orders 142-1319, issued by the U.S. Army Garrison, Fort Sill, OK ordered the applicant’s discharge from active duty effective 17 August 2019. l. The applicant was discharged on 17 August 2019. His DD Form 214 shows he was discharged from active duty in accordance with paragraph 14-12c (serious offense) of AR 635-200 with a general, under honorable conditions discharge. (a) He completed 22 years, 9 months and 3 days of active service and he had lost time from 11 May 2017 to 4 October 2017. (b) His reenlistment periods and continuous honorable service are listed in Block 18 (Remarks) together with a statement that he completed his first term of service. (c ) He was awarded or authorized: Bronze Star Medal, Army Commendation Medal (4th Award), Join Service Achievement Medal (2nd Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal (6th Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Iraq Campaign Medal with 2 bronze service stars, NCO Professional Development Ribbon (3rd Award), Army Service Ribbon, Overseas Service Ribbon (4th Award), NATO Medal, Combat Action Badge, and marksmanship and driver badges. (d) He was assigned Separation Code JKQ (Serious Misconduct) and Reentry (RE) Code 3. 3. By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for a commission of a serious offense. A discharge under other than honorable conditions 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. 4. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14-12 provides for conditions that subject Soldiers to discharge. Soldiers are subject to discharge for the following: a. 14-12a, Minor disciplinary infractions. A pattern of misconduct consisting solely of minor military disciplinary infractions. Except as provided in paragraph 11–3c, if separation of a Soldier in entry-level status is warranted solely by reason of minor disciplinary infractions, the action will be processed under chapter 11 of this regulation. b. 14-12b, pattern of misconduct. A pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities, and (2) Conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. c. 14-12c, Commission of a serious offense. Commission of a serious military or civil 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 MCM. Specific instances of serious offenses include but are not limited to: An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense; Abuse of illegal drugs or alcohol. Soldiers who meet separation criteria in paragraph 14c(2)(a), but for whom commanders support retention, the retention authority will be in accordance with the following provisions. For instances in which the retention authority is elevated it may not be delegated. NCOs (corporal and above) processed for separation as provided for in paragraph 14–12c(2)(a) require a retention decision from the first general officer in the chain of command with a legal advisor. All separation decisions (including retention in the Army) for specialist and below will remain with existing separation authorities. d. A Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda will be given the opportunity to apply for retirement, and if electing to apply for retirement, request a reduction in rank. He or she will be told that authority to submit the DA Form 2339 (Application for Voluntary Retirement) does not assure that it will be approved. The DA Form 2339 will be attached when the case is sent to HQDA or a statement will be included that the Soldier was given the opportunity but declined to apply for retirement. 2. 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, 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) AR20210012943 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1