ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 September 2021 DOCKET NUMBER: AR20200006938 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to general, under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 2 March 2016 * Headquarters (HQ), III Corps and Fort Hood, Orders 057-0120, 26 February 2016 and Amended Orders 057-0120, 26 February 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 2 March 2016 * Enlisted Record Brief, 3 March 2016 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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, in effect: a. He never received nonjudicial punishment under provisions of Article 15 of the Uniform Code of Military Justice. b. He has numerous sworn statements of the incident verifying his innocence. c. He did not realize at the time the severity of the situation but deeply regrets not pursuing his case as his lawyer came in hung over many times. He lacked knowledge so he went with his lawyer's suggestion. d. He was escorted by his commander during the entire clearing process and he wore his sergeant rank. His commander referred to his as sergeant the last time he saw him. 3. A review of the applicant's available service records shows: a. On 28 February 2016, the applicant enlisted in the Regular Army at the grade/pay grade private first class/E-3. He attained the grade/pay grade of specialist/E-4. b. On 15 January 2015, he reenlisted for a period of 3 years. He attained the grade/pay grade of sergeant/E-4. c. On an unspecified date, 2016, the Commanding General, HQ, 1st Cavalry Division, Fort Hood, approved his request for discharge under provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in lieu of trial by court marital. The commanding general directed his reduction to the lowest enlisted grade in accordance with AR 600-8-19, paragraph 10-1(d), and that the court- martial charges pending against him would be withdrawn and dismissed without prejudice effective upon the date of his separation. d. The charge sheet which would have shown the charges preferred against him, his memorandum requesting discharge in lieu of court-martial, and his immediate and his intermediate commander's recommendations for discharge memoranda, are not contained in the available records. e. HQ, III Corps and Fort Hood, Orders 056-0120 (and amended orders), 25 February 2016 and 26 February 2016, discharged him under provisions of AR 635- 200, effective 2 March 2016. f. A Non-commissioned Officer Evaluation Report (Sergeant) (DA Form 2166-9), 1 March 2016, shows he was not recommended for further service in the U.S. Army. His Senior Rater stated the applicant did not currently have any potential to continue to service in the U.S. Army and his individual actions resulted in his separation from service. It further notes he: * attended a gathering with lower enlisted Soldiers present, and was found guilty of fraternization under AR 600-20 (Army Command Policies and Procedures) * compromised discipline, Army Values, and Warrior Ethos by behaving in a manner unbecoming of an NCO * compromised his professional bearing by using his grade and position to obtain influence over a subordinate * used rank and position to influence the judgement of a subordinate, resulting in a subordinate receiving a DUI * used undue influence to get a subordinate to follow an unlawful order * created a hostile environment by improperly utilizing his rank * did not properly prepare for NCO School, resulting in failing the school g. On 2 March 2016, he was separated. His DD Form 214 shows he was discharged under provisions of AR 635-200, chapter 10 in lieu of trial by court-martial with a characterization under other than honorable conditions. It further shows he completed 3 years, 5 months, and 29 days of net active service during this period and completed continuous honorable service from 4 September 2012 to 14 January 2015. He was awarded or authorized: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Korea Defense Service Medal * Army service Ribbon * Driver and Mechanical Badge with W (Wheeled Vehicles) * Driver-Tracked Vehicles Clasp * Sharpshooter Marksmanship Qualification Badge with Rifle Bar h. On 9 January 2018, the Army Discharge Review Board denied his application for an upgrade of his discharge, finding it was both proper and equitable. 4. By regulation (AR 635-200), a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 5. 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: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and the reason for his separation. The Board agreed that the applicant’s case warrants clemency based on the applicant’s previous honorable periods of service. ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. The Board found that the applicant’s case warrants clemency with an upgrade of his discharge to under honorable (general) conditions. Therefore, relief was granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX XXX XXX 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 reissuing the applicant a DD Form 214 showing his characterization of service as General Under Honorable Conditions. X CHAIRPERSON 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3-7 provides: (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. (2) 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 separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. b. Chapter 10 provided, that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Army Regulation 600-20 (Army Command Policies and Procedures), currently in effect, prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign (R2C) Plan, military discipline and conduct, the Army Equal Opportunity (EO) Program, and the Army Sexual Harassment/Assault Response and Prevention (SHARP) Program. Paragraph 4-14 provided Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier, or between an NCO and a junior-enlisted Soldier. Examples of familiarity between Soldiers that may become “undue” can include repeated visits to bars, nightclubs, eating establishments, or homes between an officer and an enlisted Soldier, or an NCO and a junior-enlisted Soldier, except for social gatherings, that involve an entire unit, office, or work section. All relationships between Soldiers of different grade are prohibited if they: * compromise, or appear to compromise, the integrity of supervisory authority or the chain of command * cause actual or perceived partiality or unfairness * involve, or appear to involve, the improper use of grade or position for personal gain * are, or are perceived to be, exploitative or coercive in nature * create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission 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, 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//