IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150012477 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150012477 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. ______________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. IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150012477 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under honorable conditions (general) discharge to an honorable discharge and a personal appearance. 2. The applicant states: a. He was recently granted an upgrade of his [under other than honorable conditions] discharge to a general discharge. The Army Discharge Review Board (ADRB) told him he would have one chance to have his general discharge upgraded to honorable. b. He was unjustly accused of assaulting a young woman. The facts and evidence proved that she fabricated a story about him. Due to poor legal advice, he accepted the terms from the Army that would grant him an under other than honorable conditions discharge. He was scared, agreed to the discharge, and later learned he should have pursued better legal assistance. He has substantial documentation that proves his side of the story. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 11 August 2010 in the rank/grade of private (PV1)/E-1 when he was 20 years of age. On 22 February 2012, he was assigned to Company C, 1st Battalion, 4th Infantry Regiment, Joint Multinational Training Command (JMTC), Hohenfels Training Area, Germany. On 7 June 2012, he was promoted to the rank/grade of private (PV2)/E-2. 2. In December 2012, he traveled to England on approved leave and in January 2013 he returned to his assigned unit. 3. On 7 January 2013, his immediate commander was notified by the U.S. Army Criminal Investigation Command (CID), that CID had been notified that a 17 year old female resident of London, England, reported she was sexually assaulted by the applicant just after midnight on 1 January 2013 while in a portable latrine. CID initiated an investigation into the matter. 4. On 1 February 2013, he was promoted to private first class (PFC)/E-3. 5. In a final CID Report of Investigation (ROI), dated 25 September 2013, it shows, after a review of the pertinent evidence and sworn statements from the victim and witnesses, that: a. The investigation established probable cause to believe the applicant committed the offense of sexual assault when, on 1 January 2013, he engaged in an unlawful sexual act upon Miss G while she was substantially incapacitated and incapable of appraising the sexual act (emphasis added). The applicant was interviewed and declined to make a statement. Witness interviews corroborated Miss G's statement and level of intoxication. b. Captain (CPT) AAR, Trial Counsel, Hohenfels Training Area, opined there was probable cause to believe the applicant committed the offense of sexual assault. 6. On 21 January 2014, court-martial charges were preferred against the applicant for one specification of, between 31 December 2012 and 1 January 2013, committing a sexual act upon Miss G by penetrating her vulva with his penis when she was incapable of consenting to a sexual act due to impairment by an intoxicant, and that condition was known or should have been known by the applicant. 7. In a memorandum to the Commander (CDR), Seventh Army JMCT, dated 22 January 2014, the Staff Judge Advocate, JMTC, stated he reviewed the charges and allied documents in the applicant's case. a. The allegation of the offense was warranted by the evidence indicated in the ROI in accordance with the provisions of Article 32, Uniform of Military Justice (UCMJ). b. The applicant's chain of command and the Article 32 investigating officer (IO) recommended trial by a general court-martial. 8. On 11 March 2014, after being counseled by his defense counsel, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10 – in lieu of a trial by court-martial. In his request for a discharge, he acknowledged: a. He was making the request of his own free will and had not been subjected to any coercion whatsoever by any person, he understood by submitting the request he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service. b. Prior to completing the request, he had consulted with counsel who had fully advised him of his rights under the UCMJ, the elements of the offenses with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which were available at the time, and the maximum punishment. Although, counsel furnished him legal advice, the decision was his own. c. He also acknowledged that while he was requesting a discharge characterization of general, under honorable conditions, he understood if his request was approved he could be discharged under other than honorable conditions. He had been advised of the possible effects of an under other than honorable conditions discharge and that he may be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 9. His immediate and intermediate commanders recommended approval of the applicant's request for discharge due to the difficulty of witness coordination and the length of time that had passed since the offense. 10. On 12 March 2014, his senior commander recommended approval of the discharge request with the issuance of an under other than honorable conditions discharge. 11. On 12 March 2014, the approving authority approved the applicant's request for discharge in lieu of court-martial and directed his service be characterized as under other than honorable conditions. On 27 March 2014, he was discharged accordingly. 12. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the rank of PV1, under the provisions of Army Regulation 635-200, chapter 10 – in lieu of trial by court-martial, with a characterization of service as under other than honorable conditions. 13. General Court-Martial Order Number 9, dated 9 April 2014, issued by Seventh Army JMTC, Germany, stated the court-martial proceedings against the applicant were terminated on 30 January 2014. The convening authority approved the accused's request for discharge in lieu of court-martial. 14. On 14 February 2014, the applicant submitted a request to the ADRB for an upgrade of his discharge to honorable. On 18 May 2015, the ADRB determined his characterization of service was too harsh and granted him partial relief. The ADRB upgraded the characterization of his discharge to general, under honorable conditions and restored his rank to PFC. The ADRB determined the reason for his discharge had been proper and equitable and voted not to change it. 15. His initial DD Form 214 was voided and on 22 June 2015 he was issued a new DD Form 214 wherein it shows he was discharged in the rank of PFC, under the provisions of Army Regulation 635-200, chapter 10 – in lieu of trial by court-martial, with a characterization of service as under honorable conditions (general). REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service 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. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that 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. 2. 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; recommend a hearing when appropriate in the interest of justice, or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. The applicant's record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. Notwithstanding the applicant's contention that he had poor legal advice, the evidence of record does not support this contention. His record shows that in his request for a discharge in lieu of a trial by a general court-martial, he admitted he was guilty of the charges against him, that he was making the request of his own free will, and he had been fully advised by his legal counsel of his rights. He further acknowledged that although his legal counsel furnished him legal advice, the decision to submit a request for discharge in lieu of trial by court-martial was his own. 4. Although the court-martial charges against him may have been dismissed due the approval of his request for an administrative discharge, the evidence of record shows he admitted he was guilty of sexually assaulting a minor female who was intoxicated and unable to give her consent. This misconduct does not meet the standards of acceptable conduct and performance of duty for Army personnel. While the ADRB upgraded his discharge to under honorable conditions, the applicant has provided insufficient evidence to show an error or an injustice occurred in the processing of his administrative separation warranting an upgrade to honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012477 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012477 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2