IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20200001406 APPLICANT REQUESTS: correction of the following on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 February 2001: * block 26 (Separation Code) * upgrade of his character of service from under other than honorable conditions (UOTHC) to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * applicant sworn statement (2) * sworn statement, "T" * summarized transcript, Article 32(b) Investigation * handwritten letter, Ms. "S" * sworn statement, "M" * DA Form 31 (Request and Authority for Leave), undated * handwritten note, Lieutenant Colonel (LTC) "C" * Fort Myer Lodging receipt * Phone records * Space available travel information (Maxwell AFB Passenger Terminal) * DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earning Statement (LES)), dated 1 – 30 June 2000 * DD Form 2558 (Authorization to Start, Stop or Change an Allotment) (3) * Officer Evaluation Reports (OERs) (5) * DA Form 1059 (Service School Academic Evaluation Report), dated 23 February 1993 * award certificates (9) * Officer Record Brief (ORB), dated 22 January 2001 * photo * letter, Captain (CPT) "K," dated March 2000 * letter, Brigadier General (BG) (Retired) "B," dated 28 April 2019 * character letters (4) * DD Form 214, dated 24 September 1992 * DD Form 214, dated 2 February 2001 * emails (8), District Columbia (DC) Army National Guard (ARNG) * applicant resume (Professional Career Summary) memorandum, Klimaski and Associates, dated 26 March 2019 * memorandum, legal counsel, Garrison Military Law, undated FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, in section 1552(b); however, the 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 defers all statements to counsel. Counsel provides a 7-page memorandum, wherein he states, in effect, pursuant to Army Regulation 15-180, the applicant respectfully submits this application for review of his discharge from the United States Army. Specifically, and for the reasons discussed below, the applicant requests an upgrade of his discharge from "Under Other than Honorable Conditions" to "Honorable" and correction of the separation code on his DD 214. a. There is good cause for the applicant's upgrade request, given the basis of his discharge and the life that he has lived since his discharge. b. The applicant's discharge stemmed from allegations that he was intentionally married to two different women at the same time: (1) he left to investigate and take care of the issue without authority to leave, and (2) he made certain false statements. (3) Counsel contends that the allegations against the applicant are untrue. c. The applicant was unaware his first wife failed to finalize their divorce after he sent her the necessary paperwork. Although he can be criticized for failure to verify whether the divorced was finalized, the failure was in no way criminal nor was his second marriage. After learning he was still married to his first wife, he immediately took action to annul his second marriage. He learned his divorce was not finalized just as he arrived at a new duty assignment in the Military District of Washington (MDW). He requested leave in order to tend to the matter and believed with good reason his request was granted. Later, he was told his request had not actually been granted and he made various efforts to return to his place of duty, and did indeed return. He had no intent to violate the law. d. At the time of these events the applicant had served in the Army for 18 years, without issue, both as an enlisted Soldier and an officer. The applicant's discharge characterization is inequitable and improper, and should be upgraded to Honorable based on the legal errors outlined, along with his impressive, overall military record. (1) The applicant's command alleged that his marriage to "Y" was illegal because he was already married to "T" at the time. He was not guilty of bigamy, however, because his first wife had led him to believe she had finalized their divorce. When the applicant married his second wife he had no intention or reason to be married to two women at the same time. (a) Although Article 134 of the Uniform Code of Military Justice (UCMJ) makes bigamy illegal, the same article also states that "A belief that a prior marriage has been terminated by divorce ... constitutes a defense" so long as that belief was reasonable. The applicant had good reason to believe his first marriage had been terminated by divorce. (b) The applicant married "W" on 23 April 1983 and sought a divorce years later. In doing so, he consulted with the Fort Benning Judge Advocate General (JAG) office, obtained a "do it yourself' divorce kit, filled out his part of the relevant paperwork, and then sent that paperwork to his wife for her to complete. [Enclosure (Encl) 1 and 3] (c) Without the applicant's knowledge "Mrs. T" never completed the paperwork or filed for divorce. In an enclosed sworn statement, "Mrs. T" stated that she believed the applicant had asked her if she had taken care of the divorce and she believed she told him that she had. [Encl 3] At the hearing pursuant to UCMJ, Article 32, she testified on multiple occasions that she led the applicant to believe that the divorce proceedings had taken place. [Encl 4, pages 8, 10, 11] She specifically testified that she told the applicant that she had taken care of the divorce, and that he was later shocked when he learned they were still married. [Encl 4] (d) In an enclosed letter, "Mrs. T's mother" explains that she encouraged "Mrs. T" to not complete the divorce paperwork. She said she did so because she believed the applicant simply needed time to cool-off. Specifically, she writes, "It was my idea that my daughter not file the divorce papers. Give him time to cool off I said." [Encl 5] Later, she writes, "I don't think he ever meant to hurt her or embarrass the Army. It just never occurred to him to check things out first." In her letter, she also praises Mr. Thornton for the sort of husband he was to her daughter and for the sort of person he is. Among other things, she describes him as an outstanding husband, father, son-in-law, and a dedicated Soldier. [Encl 5 – Paragraph Reference] (e) The applicant's second marriage was to "M," in December of 1998. Ms. "M" knew of his first marriage, and he had told her he and his first wife were divorced. [Encl 6] After marrying "Mrs. M," he made the appropriate changes to his personnel records to reflect his new wife. [Encl 1] Nothing in his record indicates that he somehow attempted to financially benefit in any way by being married to two different women at the same time. This is both because it was not his intent in re-marrying and because he did not know he was still married to his first wife when he remarried. After learning he was still married to his first wife, he and "Mrs. M" had their marriage annulled. [Encl 4] (2) The applicant's command alleged that he absented himself from his unit without authority from 31 May 2000 to 5 June 2000. The applicant had "legitimate reason to believe his leave had been approved," as determined even by the Major who conducted the UCMJ, Article 32 hearing. (a) On 26 May 2000, the applicant arrived and signed in to his new assignment in the MDW. Over Memorial Day weekend, he learned his divorce was not finalized. He requested to sign out on leave, and although his immediate commander was a fellow Captain (CPT), his rating chain were civilian personnel. (b) At a hearing pursuant to UMCJ, Article 32, "Mr. F," assigned to MDW, testified. "Mr. F" indicated that he was the applicant's rater. He stated the applicant needed to take care of some personnel issues-specifically, tending to having just learned his divorce was never finalized; therefore, he needed to take leave. After some back and forth between different individuals at MDW, he spoke with the Acting Chief of Staff, a Lieutenant Colonel (LTC), who handwrote a memo recommending that the applicant be placed on leave. A copy of his memo is also enclosed. [Encl 8] "Mr. F" also noted in his testimony that the applicant's immediate commander, another CPT, was not one to help Soldiers. Based on his conversations, including with the LTC, he told CPT Thornton that he "was good to go" with regard to leave. [Encl 4 – Paragraph Reference] (c) "Mr. F" also testified that, when the applicant was later told that his leave had not actually been approved by his company commander, he called "Mr. F" and was "very concerned." The applicant indicated he would be back for duty. [Encl 4 – Paragraph Reference] (d) At that point, on 1 June 2000, when the applicant was told his leave had not actually been approved, he had already arrived in Florida to tend to his marital issues. Upon being told his leave was not authorized, he made various efforts to return. He is a meticulous record-keeper and has kept various documents from that time. These documents include phone records showing multiple calls he made to Pensacola Naval Air Station to check on available military flights back to the Washington, D.C., area [Encl 10]. Also included is the pamphlet he received regarding Space Available travel [Encl 11]. (e) Although it took a few days before he could obtain a seat on a military flight, he did so. Moreover, the fact that he even flew to Florida on military flights shows that he had no intention to go absent without leave (AWOL). If he had intended to go AWOL, he most likely would have evaded the military as much as possible. His records also show that on the day he believed he was first granted leave, he stayed in military lodging in the Washington, D.C., area. [Encl 9] If he intended to simply flee the military, he would not have stayed in the area, let alone at a military lodging facility, that evening. His intention through this entire time was to fly home and tend to his marital issues. He believed he had been granted authority to do so. (f) The Article 32 officer wrote in his report the applicant "had legitimate reason to believe his leave had been approved." The applicant was also a Soldier with over 17 years of service to the Army, an impeccable record, and plenty of leave accrued. [Encl 12] Along with not being the sort of Soldier who would simply leave without permission, he also had too much to risk by doing so and too much leave accrued to need to do so. If the applicant had known that his leave was not approved, he would have remained at his duty assignment until permitted to take leave. He, however, legitimately believed he had permission to leave and tend to his personal affairs. When he learned his leave was not approved, he made significant efforts to return as quickly as possible and, nineteen years ago, when one could not arrange travel as quickly as one can now, he was able to get back within a matter of a few days. The accusation that he went AWOL was unsupported both by the evidence and by reason. (3) False statements – (a) The allegations that the applicant made certain false official statements all relate to the same issues described above, his second marriage and the circumstances surrounding his leave. (b) The applicant had no intent to deceive anyone and did not believe the statements for which he was charged were false. For someone to be guilty of making a false official statement under UCMJ, Article 107, one must believe his or her statement is false at the time of the statement. (c) The applicant truly believed that his first marriage ended in divorce and, as explained above, had good reason to believe that. He also did not know before leaving his place of duty that his leave request had not been approved, which was shown through testimony at his UCMJ, Article 32, hearing, and is established through the enclosures. Further, he did indeed fill out certain financial forms in 1999 and 2000 in order to ensure that his second wife was receiving financial support. [Encl 13] There are no documents or other proof showing otherwise. He had nothing to gain financially from being married to two different women at once. As soon as he realized that was the case, he finalized the divorce for his first marriage and obtained an annulment for the second marriage. (4) Other issues – (a) The applicant's separation code on his DD Form 214 is listed as "JND" with an inexplicable meaning of "Other, Concealment of arrest record." There is nothing known to counsel that supports or is in any way relevant to that separation code. Should the Board find documentation that seems to support that code, counsel respectfully requests to be provided that documentation, as well as the opportunity to respond, before the Board makes a decision on this matter. (b) The applicant's overall record provides that he served in the Army for 18 years, both as an enlisted Soldier and officer. He first enlisted in 1983 and rose to the rank of Staff Sergeant (SSG) before being honorably discharged in 1992. Among other awards and honors, as an enlisted Soldier, he received the French Commando Badge, Army Commendation Medal, the Meritorious Service Medal, and the Army of Occupation Medal. He also attended the Army Signal Intelligence School, Air Force Enciphered Communication course, Navy Electronic Warfare School, Basic Noncommissioned Officer Course, and Primary Leadership Development Course, where he made the commandant's list for leadership. (c) He attended Officer Candidate School (OCS) in 1992 and served as an officer without issue until the issues described herein arose. When these issues arose in 2000, various other Soldiers wrote character letters on behalf of the applicant. In one such letter, "Major (MAJ) J" described him as "an outstanding leader who genuinely cared for his men," who was routinely assigned "the most difficult and demanding abilities as an infantry leader, and his unique ability to bring out the very best in his men," and "an ethical man who took the matter of personal honor and integrity very seriously." (d) "CPT E" said he served with the applicant in the 82nd Airborne (ABN) Division (DIV), and described him as "an excellent officer that accomplished the mission, and took care of soldiers." "CPT L," the Trial Counsel for one of the applicant's units, noted his impressive assignments, including that he "was selected to command in the most dangerous place on earth to command: in the United Nations Command Security (UNCS) Battalion (BN), Joint Security Area (DMZ) Korea" and that he was also "selected to escort the nation's Commander in Chief." He indicated that the applicant was selected for that responsibility "because he has spent his professional life doing well what most men could not and would never desire to do." "CPT (Chaplain) B," wrote about the applicant putting the needs of his Soldiers above his own needs. [Encl 20 – Paragraph Reference] (e) The applicant was a highly accomplished, well-decorated Soldier. Among other things, he was Airborne-qualified, Ranger-qualified, Jumpmaster-qualified, earned the Expert Infantryman Badge and Senior Parachutist badge, and completed the Special Forces Qualification Course, Infantry Special Weapons Course, French Commando Course, Bradley Commander's Course, and the Combined Arms Schools at Fort Leavenworth, Kansas. Further, as his welcome letter from his last unit indicates, he was set to receive a security clearance of Top Secret with a Presidential Support Duty designator. [Encl 18] Additionally, he was stationed at Fort Bragg multiple times, and served in Haiti, Korea, and Germany during the Cold War. His officer record brief (ORB) shows that his continental United States (CONUS) area preferences were Fort Benning, Fort Campbell, and Fort Bragg. While serving in the 82nd ABN, DIV, his platoon was selected as the Main Effort and deployed to Haiti as a member of Joint Task Force (JTF) 180 Invasion Force. (f) In the applicant's most recent OER before the issues above arose, his senior rater described him as performing a "highly successful command of a very difficult combined Republic of Korea (ROK)/U.S. company deployed in the Korean Demilitarized Zone." Moreover, the senior rater, the Chief of Staff for Headquarters (HQ), Eighth US Army, said that he "deftly balanced an aggressive training program with the strain of conducting continuous security operations in the face of the north Korean's People's Army," and that he is a "mature, dedicated, quiet professional that leads from the front." [Encl 14] Previous OERs describe, among other things, him as performing "magnificently" and having "outstanding potential," as "exemplary" and "superb," as "one of the top Captains in the Battalion." (Encl 14) Additionally, a retired, U.S. Army Special Forces Brigadier General has provided a recent letter, enclosed, in which he attests to his "intelligence, fortitude, professionalism and character," his "candor, integrity and selfless service," and describes him as someone he would be honored to serve with again. [Encl 19] (g) Since being discharged from the Army, he has continued to honorably serve the United States government as well as his community and family. His enclosed résumé shows, among other things, he has served as a contract security professional, managing an armed security force consisting of hundreds of Protection Officers who cover multiple United States Department of Veterans Affairs (VA) HQ buildings in Washington, D.C. Service is so important to him that, as enclosures show, he later attempted to join the District of Columbia National Guard, albeit unsuccessfully. [Encl 23] (5) The summary of the many issues described above along with the applicant's overall record make his discharge both inequitable and improper. His military service was and is deeply meaningful to him. This is clear throughout his record, to include where he served and where he wanted to serve, the various qualifications he sought and obtained, his awards and commendations, as well as the many people who praised his service through evaluations and letters on his behalf. Even today, he would like to continue to serve his country by, among other things, teaching Junior Reserve Officer's Training Corps (JROTC). (a) To this day having been discharged from an Army that he loved serving for 18 years, in the way in which he was discharged, and with a particular characterization of service that is usually reserved for far worse than what occurred, here he has felt the effects of an unjust discharge for nearly two decades. He has a true love and passion for being a Soldier. (b) Accordingly, he and counsel respectfully request that his discharge be upgraded to Honorable. 3. On 10 February 1983, the applicant enlisted into the Regular Army for a period of three years. 4. Orders 234-526, Headquarters (HQ), United States Army Infantry Center (USAIC), dated 21 August 1992, shows the applicant was discharged for the purpose of accepting a commission in the United States Army Reserve (USAR). 5. Orders 70-1-A-134, HQ, USAIC, dated 25 August 1992, shows the applicant was ordered to active duty in the rank of Second Lieutenant (2LT) with the report date 25 September 1992. 6. Order Number 261-049, U.S. Total Army Personnel Command, dated 17 September 1996, shows the applicant was promoted to the rank of CPT, effective 1 October 1996. 7. Orders 091-1, U.S. Army Garrison, Fort Belvoir, dated 31 March 2000, shows the applicant was reassigned for Permanent Change of Station (PCS) to HQ, United States Army Garrison, Fort McNair, Washington, D.C., with a report date of 30 April 2000. 8. The applicant's military record is void of non-judicial punishment (NJP) although his available record does show his: * Marriage License, State of Florida, Escambia County – "W," dated 26 April 1983 * Marriage Certificate, State of Alabama, Montgomery County – "M," dated 1 December 1998 * Certificate of Marriage, Alabama, Montgomery County – "M," dated 21 December 1998, which shows prior marriage and divorce * handwritten memorandum from COL C, U.S. Army Military District of Washington (MDW) – address of exception to no leave agreement * DA Form 31 for 31 May 2000 to 13 June 2000, undated and unsigned by the approval authority * DA Form 4187 (Personnel Action), dated 6 June 2000 – Present for Duty (PDY) to AWOL, effective 31 May 2000 * DA Form 4187, dated 8 June 2000 – AWOL to PDY, effective 6 June 2000 * applicant's sworn statement (2), dated 6 June 2000 * LESs – July 1999 to July 2000 * ORB, dated 21 December 2000 * sworn statements (5) 9. The applicant's DA Form 458 (Charge Sheet), dated 7 September 2000, shows referral-service of charges, dated 9 November 2000, for: * Charge I (Violation of the UCMJ, Article 86) – Specification: AWOL on or about 31 May 2000 to on or about 5 June 2000 * Charge II - Dismissed * Charge III (Violation of the UCMJ, Article 107) – * Specification 1: with intent he signed an official record (Certificate of Marriage, AL) to show his first marriage ended in divorce, on 13 July 1994, which was false and known by him to be false * Specification 2: with intent to deceive, on 6 June 2000, he made an official statement to Special Agent "H" to wit: that he did not know that his leave had been disapproved which was false and know by him to be false * Specification 3: with intent deceive, on 6 June 2000, he made an official statement to Special Agent "H" to wit: in March 1999 and again in April 2000 while stationed in Korea he changed his finance records to delete "T" as his wife and added "M" which was false and he knew to be false * Charge IV (Violation of the UCMJ, Article 134) – Specification: on or about 1 December 1998 he wrongfully married "M" by having at the time a lawful wife then living "Mrs. T" 10. On 1 November 2000, the applicant's Article 32(b) (Summary of Proceedings) shows the following: * the Investigating Officer (IO) stated he was appointed by letter of appointment from HQ, United States Army Garrison, dated 12 October 2000 * defense indicated they had no witnesses * Questions by the IO – "CPT H" testimony: Director and Chief of Staff (CoS) had previously come to the conclusion that no leave would be taken during 15 May to 5 July; leave would not be granted unless it was an emergency and his leave was disapproved based on those facts and CID wanted to question him for bigamy * Direct Examination – "CPT S" testimony: during their dating he stated he was divorced for about four or five years and they later married; she found out he was still married to his first wife "T" for 17 years * Direct Examination – "Mr. F" testimony: the applicant came to him concerning his leave request for personal issues because the commander did not grant his leave * he went to the Acting CoS to request an exception for his leave and the CoS wrote a note recommending he be placed on leave * he told the applicant he was good to go or should be good to go for leave * he was the applicant's rater at the time of his leave request * the applicant called him when he was informed of his AWOL status and indicated he would return for duty which he did * telephone testimony from "Mrs. T" – she was given divorce paperwork and gave the applicant the impression the paper work had been filed and the proceedings had taken place when he asked if she had taken care of it * she gave him the impression they were divorced and he thought they were divorced where as he was shocked to find they were still married * she led the applicant to believe they were divorced (August 1998) after he initiated it and she received divorce papers * she never notified him of a court date and he never asked for a decree * she continued to receive spousal benefits and services (Pensacola, FL) * he never told her he remarried or that he was living with his new wife * she went to Washington, DC to confront him and he and Shannon went to the court house on Tuesday to file for annulment * he was in Pensacola, FL when he was informed he was AWOL and took a MAC flight back to Washington, DC 11. The applicant's DD Form 457 (Investigating Officer's Report), dated 3 November 2000, shows defense counsel made the following objections: * to any information on an adulterous affair * any information on non-support * recommended dismissal of Charge 1 and Charge 2 – based on "Mr. F's" statements and testimony stating that the accused was "good to go" * the applicant had legitimate reason to believe his leave had been approved 12. On 12 December 2000, the applicant submitted his resignation for the Good of the Service in Lieu of General Court-Martial with seven enclosures which shows: * he voluntarily tendered his resignation from the Army under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 3, paragraph 3-13 (Rules for processing Resignation for the Good of the Service in lieu of general court-martial) * he did not desire to appear before a court-martial or a board of officers * he was not subject to coercion with respect to his resignation and had been advised of and fully understood the implications of his action * he was advised by counsel ("CPT B"), on 11 December 2000, prior to submitting his resignation * he had been afforded an opportunity to present matters of mitigation, extenuation, and defense (attached) * he understood that his resignation, if accepted, may be considered as being UOTHC and if such character was directed he would not be entitled to unused accrued leave * he understood that his resignation for the good of the service may only be withdrawn with the approval of HQ, Department of the Army (HQDA) he recognized the actions which led to charges constituted a serious lapse in judgment and out of character with his conduct * he took responsibility for the action which led to the preferred charges and indicate a lack of judgment and professionalism 13. The applicant's intermediate commander(s) recommended approval of his resignation for the Good the Service in Lieu of Court-Martial under the provisions of Army Regulation 600-8-24, paragraph 3-13, on 15 December 2000 and 20 December 2000, whereas the appropriate general authority also recommended he receive an UOTHC discharge for the following reasons: a. The applicant committed bigamy when he married CPT "M" while still legally married to his first wife, Mrs. "T." When the bigamy was discovered he lived in Washington DC with his second wife (CPT "M") while his first wife, Mrs. "T," lived in Florida with her and the applicant's children. Through a series of events in May of 2000, CPT "M" found a phone number, called it, and ended up talking with Mrs. "T" in Florida. During that conversation, CPT "M" and Mrs. "T" discovered that they were both married to the applicant. Mrs. "T" stated that she had been married to him for the past 17 years and they had never divorced. The very next day, Mrs. "T" flew from Florida to Washington, DC and CPT "M" met her at the airport. They then went to the applicant's home where they together confronted him as he lay in CPT "M's" bed. When they walked into the bedroom he looked at the two of them together and stated, "I guess I'm busted." b. During the ensuing confrontation they asked the applicant to explain his actions. He admitted that he knew he was still married to Mrs. "T" when he married CPT "M" but he knew Mrs. "T" would never let him divorce her because she wanted to keep her Army benefits and she had the leverage of a previous adulterous relationship of his that she was holding over his head. He stated he knew that Mrs. "T" would never let him go and he married CPT "M" because he had to "take [his] chance at happiness." c. After being confronted by both wives, the applicant requested leave in order to go to Florida. This request was denied by his company commander and following the denial he went AWOL and drove to Florida and met with Mrs. "T." d. The applicant never told CPT "M" during their courtship and marriage that he was still married to Mrs. "T". In fact, he did tell CPT "M" that he had been divorced for approximately four to five years. He perpetuated this lie when he signed his marriage certificate with CPT "M" indicating thereon that his first marriage had ended in divorce on 13 July 1994. e. He also lied to a CID agent when he stated that he had changed his finance records during 1999 to delete Mrs. "T" as his wife and add CPT "M." 14. An automated message, dated 9 December 2000, shows the appropriate authority approved the applicant's resignation for the good of the service, under the provisions of Army Regulation 600-8-24, chapter 3, and directed the issuance of orders for an UOTHC with Separation Program Designator (SPD) "DFS." 15. Orders 022-0003, HQ, Fort Myer Military Community, dated 22 January 2001, show the applicant was reassigned to the U.S. Army Transition Center, Fort Myer, VA to be discharged on 2 February 2001. On 2 February 2001, the applicant was discharged under the provisions of Army Regulation 600-8-24, paragraph 5-3 (Rules for processing separation of an officer due to lack of jurisdiction). His service was characterized as UOTHC. He completed 8 years, 4 months, and 8 days of net active service. His DD Form 214 shows: * block 4a (Grade, Rate or Rank) – "CPT" * block 4b (Pay Grade) – "O3" * block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – * Defense Meritorious Service Medal * Meritorious Service Medal * Army Commendation Medal (4th Award) * Army Achievement Medal (6th Award) * Army Superior Unit Award * Army Good Conduct Medal (3rd Award) * Army of Occupation Medal * National Defense Service Medal * Armed Forces Expeditionary Medal * Humanitarian Service Medal * Noncommissioned Officer's Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * United Nations Medal * Expert Infantryman Badge * Senior Parachutist Badge * block 21 (Signature of Member Being Separated) – his signature/authentication * block 26 (Separation Code) – "JND" * block 27 (Reentry Code) – "NA" * block 28 (Narrative Reason for Separation) – "INVOLUNTARY DISCHARGE" * block 29 (Dates of Time Lost During This Period) – "NONE" 16. His counsel provides the following: * applicant's and Mrs. "T's" (wife) sworn statements which show he received pre- divorce guidance and a do it yourself divorce kit * hand written letter to show Ms. "S" (mother-in-law) encouraged his wife not to complete the divorce documents * travel documents, lodging, and phone records to show his efforts to return to duty after being informed of his AWOL status in June 2000 * military flight evidence to show his intent of traveling to Pensacola, FL was under his belief of an approved leave and not for AWOL * DA Form 2558 (3) to show allotments to CPT "M" * letters for character reference (6) * DD Form 214, dated 24 September 1992, which shows his net active service as 9 years, 7 months, and 15 days * Email evidence of request for commissioning to District of Columbia Army National Guard 17. The applicant's record is void of a request to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. 18. Army Regulation 635-5 (Separations Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. 19. Army Regulation 600-8-24 (Officer Transfers and Discharges), then in effect, prescribes policies and procedures governing transfer and discharge of Army officer personnel. 20. 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. 21. The Board should consider all of counsel's statements and contentions in accordance with the published equity, injustice, or clemency determination guidance. 22. Army Regulation 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record. It is not an investigative body. ? BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board considered the length of the applicant's service, his outstanding performance during that service, and the circumstances leading to his resignation in lieu of trial by court-martial. The Board also considered the transcript of the Article 32 hearing and statements given to CID. While the Board agreed that the applicant made some significant errors of judgment, the Board found the final outcome in his case to be overly harsh. In particular, the Board noted the applicant's first spouse admitted that she allowed him to maintain the belief that they had divorced, even though she knew that was not true. The Board agreed that the issues in this case could have been resolved in a manner more favorable to the applicant and noted that he did take action to rectify his errors in judgment, though too late to avoid the situation into which those mistakes led him. 3. By a preponderance of the evidence, the Board determined clemency is appropriate in this case, and recommended that the applicant's record be corrected to show he was retired honorably after completing 20 years of active duty service, with payment of any active duty pay and allowances and retired pay he is due as a result of this correction. 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: a. revoking his discharge in lieu of trial by court-martial; b. showing he continued to serve until he reached 20 years of active duty service; c. showing he was retired by reason of sufficient service for retirement; and d. paying him any active duty pay and allowances and any retired pay he is due as a result of these corrections. 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 635-5 (Separations Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It provides for: a. Block 23 (Type of Separation), enter the appropriate term listed below: * discharge * retirement * release from active duty and order to active duty in another status * release from Active Duty Training (ADT) * release from custody and control of the Army * release from ADT and discharge from the Reserve of the Army and return to the Army National Guard (ARNG) b. Block 24 (Character of Service), correct entry is vital since it affects a soldiers’ eligibility for post–service benefits. Characterization or description of service is determined by directives authorizing separation. For a soldier being released from custody and control of the Army due to a void or voided enlistment, enter “hyphens.” Otherwise, the entry must be one of the following: * Honorable * Under Honorable Conditions (General) * Under Other Than Honorable Conditions * Bad Conduct * Dishonorable * Uncharacterized c. Block 25 (Separation Authority), obtain correct entry from regulatory or directives authorizing the separation. d. Block 26 (Separation Code), obtain correct entry from Army Regulation 635–5–1, which provides the corresponding separation program designator code for the regulatory authority and reason for separation. e. Block 28 (Narrative Reason for Separation), is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635–5–1. f. Block 29 (Dates of Time Lost During This Period) verify that time lost as indicated by Defense Finance and Accounting Service agencies has been subtracted from Net Active Service This Period (block 12c) if the lost time was not “made good.” If the ETS was adjusted as a result of lost time and the soldier served until ETS, the lost time was “made good.” Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges), then in effect, prescribes policies and procedures governing transfer and discharge of Army officer personnel. a. Paragraph 1-21 (Types of administrative discharge/character of service) states when an officer’s tour of AD is terminated due to discharge, retirement, or release from active duty (REFRAD), the period of service will be characterized as "Honorable," "General" ("Under Honorable Conditions"), "Under Other Than Honorable," or "Dishonorable" (warrant officers who not hold a commission only), depending on the circumstances. The character of service will be predicated on the officer’s behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service. (1) Honorable characterization of service. An officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. (2) Under Other Than Honorable Condition (UOTHC) characterization of service. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. A discharge certificate will not be issued. An officer will normally receive an “Under Other Than Honorable Conditions” when he or she – (a) Resigns for the good of the service. (b) Is involuntarily separated due to misconduct, moral or professional dereliction, or in the interest of national security. (c) Is discharged following conviction by civil authorities. b. Chapter 3 (Resignations), paragraph 3-1, states this chapter prescribes the tasks, rules, and steps for processing voluntary resignations. Except as provided in b below, any officer of the Active Army or USAR may tender a resignation under provisions of this chapter. The Secretary of the Army will accept resignations and orders will be issued by direction of the CG, PERSCOM. Subparagraph b provides USAR officers in an AGR status or on ADT, ADSW, TTAD and Soldiers on active duty pursuant to 10 USC 12304 (Presidential Selected Reserve) will request resignations under the provisions of Army Regulation 135–175. Before such a request is submitted, they must be released from their active duty status. c. Paragraph 4-1 (Overview) states: (1) An officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or can not maintain those standards will be separated. (2) This chapter prescribes the tasks, rules, and steps for eliminating officers in the Active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. d. Paragraph 5-3 (Rules for processing separation of an officer due to lack of jurisdiction) states: (1) If a U.S. court or judge orders the release of an officer from active duty (AD), the Commanding General (CG), United States Total Army Personnel Command (PERSCOM), or CG, U.S. Army Reserve Personnel Center (ARPERCEN), (as applicable) will take the appropriate action to direct the release from military control of the officer concerned. (2) Similar action will be taken on the final determination of a convening authority of a general or special court-martial, a military judge, a president of a special court- martial, or a military appellate court that an individual is not currently a member of the Army. (3) This paragraph and the appropriate SPD code from AR 635–5–1 will be cited as the authority for separation. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code: * "JND" as the appropriate code assigned for "Miscellaneous/General Reasons (To be determined)" * "DFS" is the appropriate code for "In Lieu of Trial by Court-Martial" under the authority – Army Regulation 600–8–24, para 3–13 5. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 6. 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) AR20200001406 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1