IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210015860 APPLICANT REQUESTS: a reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20180008891 on 6 August 2019. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) discharge and restoration of his rank. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's brief (9 pages) with 11 exhibits * applicant's personal statement * DD Form 214 * a release of a review titled "Air Force Releases Findings of Racial Disparity Review" * 3rd party letters of support (3) * applicant's career profile FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20180008891 on 6 August 2019. 2. The applicant states: a. He was not aware of and did not understand his rights to apply. He [previously] applied but did not provide any evidence to support a records review believing that he would be granted a personal appearance. The interests of justice would be served by a review of the package in this case. b. He joined the military because he had always wanted to fight for his country. It was his single greatest honor. He always thought it would be better to go where the enemy is and fight them in their own country, rather than let them come over here to America and kill a lot of innocent women and children as well as any American period. He is proudest of his ability to contribute to the mission by; standing tall, being ready to defend his country at any cost, no matter what. c. He was deeply disappointed that after receiving false information his chain of command failed him and basically left a fallen Soldier behind to die. He couldn't get a grasp on anything that was happening to him. No one tried to explain anything to him even though he kept asking questions. He got absolutely no answers from anyone. He felt just like a fallen Soldier left behind. He would never do that to any Soldier, ever. d. From the moment that he arrived in Hawaii he felt as if he was treated differently than other Soldiers based on his race. During his initial meeting with the First Sergeant, he sneered at me as soon as he walked in. He never met with the XO or the Commander and even though he had been part of a Field Artillery unit for almost four years and had been promoted to E-6, he was provided with no training, mentoring, or training opportunities. Not only was this inconsistent with everything he experienced in his career, but it was also not consistent with the treatment that others received on arrival in the unit. e. He believes that his race as an African American played a factor in the way that he was treated and ultimately in the way that he was separated from the military. f. Since his discharge from the military, He has continued to further his education and has worked hard to live a life that is worthy of respect. He has had a steady work history and has had no issues with law enforcement or had criminal convictions. g. The UOTHC discharge has had a severe negative impact on me. Since leaving the military he had worked in the cleaning industry because he didn't qualify for much else because of his military discharge. All the good jobs avoided him, even though he tried to get them, and he is still trying. When they see his discharge papers, they always say he don't qualify. Despite that he has continued to work hard to be a good man and a good citizen. h. He respectfully asks that this personal statement be received by the Board as evidence and that the Board take into consideration that he was treated differently as a minority than other members in his unit and that it was clear from his arrival that he was not welcome or treated like a noncommissioned officer (NCO). He also believes that the failure of leadership to fully and fairly review his cased and the evidence against him was a factor in his separation and service characterization. 3. Counsel provides a nine-page outline of the applicant's service and the incident that led to his discharge. He cites current review criteria for reconsiderations. a. His contentions include that the decision of the chain of command to rely on the unreliable and unsupported allegations of a spouse that was caught engaging in an extra-marital affair. Rather than conducting a full, fair, and thorough investigation Command chose to believe the complaining witness uncritically and proceeded to pursue court-martial charges against the applicant. b. Although the applicant waived his right to trial, the handling of the investigation and ultimately the discharge in this case resulted in a clear violation of his administrative Due Process rights, in accordance with the 5th Amendment and Supreme Court Jurisprudence. More precisely, due process requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. c. While normally the due process requirements afforded to an individual during the course of an investigation are limited, here the applicant was significantly harmed by the failure of the investigators and the chain of command to consider the information in the context of an ugly divorce. Further complicating matters are the concerns that the chain of command failed to consider the possibility that the charges were fabricated and immediately jumped to conclusions based on the Applicants gender, race, and ethnicity. d. The second legal error in this case was the result of the chain of command making a material error of discretion when they issued an UOTHC. ln issuing this service characterization, the command failed to take into consideration the applicant's decade of honorable service, his success in every position he held, and his prestigious selection to become a Drill Sergeant. While it is understandable that the Board tends to deter to command discretion, where it is clear that a Soldier served with honor and distinction it is reasonable for the Board to evaluate the legal standard set forth by regulation and consider whether the information warranted on UOTHC. e. Finally, the new evidence contributes significantly to the argument that correction of the applicant's discharge is warranted for reasons of clemency. Clemency is a major basis for relief in reconsiderations of ABCMR determinations: in cases involving courts- martial, Board action may extend only to "action on the sentence of a court martial for purposes of clemency." 10 United States Code (USC) § 1552 (f)(2). The Wilkie Memo, issued on July 25, 2018, also encourages the military's various review boards to recognize the importance of clemency. In particular, the Wilkie Memo states that "it is consistent with military custom and practice to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in situations in which individuals have paid for their misdeeds." As a result, the applicant sacrificed and suffered much during his service in the Army, Further, the length time since the applicant's misconduct and the applicant's acceptance of responsibility indicate that relief is in the interest of clemency. The applicant's alleged misconduct resulted in his discharge in 1992. He now seeks the exact kind of clemency described in the Wilkie Memo. 4. Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this Section, no matter when filed, shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 5. Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's and counsel's statements constitute new argument. 6. The applicant enlisted in the Regular Army for 4 years on 22 June 1981. He had immediate reenlistments on 23 April 1985 (with a 23-month extension on 27 July 1988) and 5 October 1990. He was last assigned to C Battery, 3rd Battalion, 7th Field Artillery, Schofield Barracks, HI, from 12 July 1991 to 20 February 1992. 7. Court-martial charges appear to have been preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) of assault and communicating a threat of bodily harm; however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 8. The applicant appears to consulted with legal counsel on 9 January 1992. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. A copy of the request is not of record. 9. On 9 January 1992, the applicant's defense counsel submitted a memorandum on behalf of the applicant. Counsel stated a. He was requesting favorable consideration of the discharge in lieu of court- martial by the applicant. He was charged with assault and communicating a threat. In spite of the serious nature of the charges, he was requesting that the applicant receive an under honorable conditions (general) discharge. b. The applicant was an outstanding noncommissioned officer with more than ten years of active duty service. He attained the rank of staff sergeant in just over six years. There was no doubt about his exemplary duty performance. c. Approval of the Chapter 10 [under other than honorable conditions] would result in a permanent black mark on his employment record. Additionally, the nature of the discharge would severely limit his access to benefits related to military service. A Chapter 10 would be sufficient punishment for a Soldier such as the applicant, a Soldier who has dedicated so much of his life to the Army. d. The applicant offers no excuse for his conduct. He freely admitted to his actions when questioned by the military police officials. He understands that his actions were inappropriate and he makes no excuses. He does ask that the command consider his difficult financial situation and the stress placed on him by a recent change of duty station to Hawaii. His family life never settled down after the move here. e. The applicant understood that it is no longer practical for him to continue in the US Army. He does ask that the command consider his outstanding service record and recommend a general discharge. He understands that such a recommendation would be unusual for a Soldier in his situation but his record speaks for itself. f. The applicant is an intense individual who has difficulty controlling his emotions. The charges currently pending against him are a result of his inability to control his anger following a heated argument with his wife. He needs to find an effective way to deal with this situation, a federal conviction will not serve the interests of justice. 10. The applicant's company, battery, and battalion commanders all recommended approval of the Chapter 10 request with a UOTHC. 11. The separation authority approved the applicant's request for discharge on 15 January 1992, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive a DD Form 794A (Under Other Than Honorable Conditions Certificate). Additionally, he directed that the applicant immediately reduced to the lowest enlisted grade under the provisions of Army Regulation 600-200, paragraph 6- 11. 12. The applicant received a general counseling statement on 16 January 1992 informing him that the Chapter 10 request had been approved and that he would be reduced in rank to private E-1. He was removed from all command details but would still be required to attend all formations in proper uniform. If he received any harassment, threats or other problems from other Soldiers he was to report the details to the first sergeant. 13. The applicant's complete discharge packet is not filed in the available official military personnel file (OMPF). Due to the lack of evidence surrounding the specific circumstance(s) that led to his discharge it cannot be determined if an investigation was properly undertake; however, although the applicant's separation packet is not available, in light of the DD Form 214, the Board presumes the applicant's leadership completed his separation properly. 14. A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 14 March 1980 he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with a characterization of service of under conditions other than honorable. He had 10 years, 8 months and 3 days of net active service, with 5 years, 11 months and 29 days of foreign service. His awards and decoration awarded or authorized are the Army Achievement Medal, Army Good Conduct Medal (3rd award), Overseas Service Ribbon (2nd award), Army Service Ribbon, NCO Development Ribbon (2nd award), Drill Sergeant Identification Badge, Expert Marksmanship Badge with Rifle and Hand Grenade bars. 15. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 16. The Army Discharge Review Board (ADRB) denied the applicant's request on 18 January 1996. The review by the ADRB did not address the applicant' reason for requesting the Chapter 10 discharge. A copy of that decisional document is attached. 17. The ABCMR's prior denial, Docket Number AR20180008891 of 16 August 2019, was unable to address the specifics of the applicant's discharge processing for the reason noted above. 18. The submission of Air Force Releases Findings of Racial Disparity Review authored be the Secretary of the Air Force Public Affairs, dated 22 December 2020, address the "apparent inequity in our application of military justice" among other issues. a. The inspector general's (IG) review focused specifically on assessing racial disparity in military discipline processes and personnel development and career opportunities as they pertain to Black/African American airmen and space professionals. b. The review's methodology included an empirical examination of Air Force military justice data dating back to 2012; career development and opportunity data involving civilian. enlisted and officer ranks; and a review of all pertinent personnel and legal Air Force instructions and related publications. As well as an IG racial disparity survey that garnered more than 123,000 responses, including more than 27,000 pages of feedback from members; conducted formal interviews of senior leaders, subject matter experts and service members; held 138 in-person 'boots-on-the-ground' listening sessions with more than 1,300 airmen and space professionals from across all major commands; and interviewed command teams at 20 installations. c. The department instituted a task force to comprehensively address the issue of racial, ethnic, gender and other demographic differences and their impact on the Air and Space Forces. The task force had facilitated additional tracking of administrative discipline data, to include demographics; increased ROTC scholarships at historically Black colleges and universities; revised dress and appearance regulations; acceptance of a Super Score combination for the Air Force Officer Qualifying Test, which gives the applicant the opportunity to use his or her highest score from each part of the test; created partnerships with African American fraternities and sororities and the Congressional Hispanic Caucus Institute; established a sixth team as part of the Barrier Analysis Working group (Asian American/Pacific Islander); and initiated the Department's new "GO Inspire" program in January designed to increase Air and Space Force general officer outreach to youth to increase diversity in operational career fields and the broader force. 18. The applicant provided letters of support that describe the applicant as a person who is an honest and caring individual. He has always maintained very high moral character and can could be relied upon to do the right thing in every situation. He has a great sense humor and he can relate to all individuals in any social situation. If things needed done, he took upon himself to make the right judgments on taking care of them. A very hard-working conscientious person. He takes his responsibilities serious. But always has the upmost respect for who he works for and others. 19. The Board should consider the applicant's and counsel's statements, his years of honorable service overall military service in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency consideration for requesting upgrade of discharge characterization of service. Upon review of the applicants petition and available military records the Board found the applicant’s discharge character of service harsh based on one incident. The Board determined the applicant had no prior incidents and served honorably with a stellar career for 10 years, 8 months and 3 days of net active service, with 5 years, 11 months and 29 days of foreign service. 2. The Board agreed that based on the applicant’s remorsefulness they agreed to upgrade his characterization to an under honorable conditions (general) discharge. The Board noted that his misconduct does not warrant an upgrade to a fully honorable discharge. Furthermore, the Board found that restoration of the applicant’s rank to staff sergeant was warranted based on his prior 10 years, that one incident should not define the applicant’s one mistake. The Board agreed to grant clemency in the form of an under honorable conditions (general) discharge, correction to his separation code to read JFF and narrative reason to show secretarial Authority and to include restoration of the applicant’s rank to staff sergeant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show a * Item 4a (Grade Rate or Rank) – SSG * Item 4b (Pay Grade) -E-6 * Item 24 (Characterization of Service) general under honorable conditions * Item 26 (Separation Code) JFF * Item 28 (Narrative Reason) Secretarial Authority 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel or > 2003 Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. ==== At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 3. Army Regulation 600-200, paragraph 6-11, as then in effect, directed that Soldiers who were being discharged under the provisions of Army Regulation 635-22, Chapter 10 would be reduced to the lowest enlisted grade. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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.) AR20210015860 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1