BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018831 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 BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018831 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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018831 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 to the characterization of his service to an honorable discharge. 2. The applicant states, in effect, he has two previous honorable discharges. He feels his current under other than honorable conditions discharge based on adultery is unjust. There has been many acts of adultery from the President to various generals and other high ranking officers who get to remain in their positions and retain their pensions. However, he was stripped of his rank and drill sergeant status and subsequently forced to leave service. He gave 14 years of service to the country and he was on the E-7 promotion list for his military occupational specialty the same year; unfortunately, one act of indiscretion pushed him out of service. He is not asking for compensation, he just wants his discharge upgraded. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having 2 years, 6 months, and 29 days of prior honorable service, the applicant enlisted in the Regular Army (RA) on 20 January 1977. 3. On 4 September 1984, court-martial charges were preferred against him, as a Drill Sergeant, for, on or about 25 May 1984: a. violating a lawful general regulation by transporting Private TKH, then a trainee, in a privately owned vehicle operated by the applicant from Fort Leonard Wood, MO, to St. Louis, MO, such transportation not being for official business or other emergency. b. violating a lawful regulation by engaging in a nonprofessional social relationship of a personal nature with a trainee outside of any duty association by going to a motel and engaging in sexual relationship by hugging, kissing and having sexual intercourse. c. wrongfully having sexual intercourse with TKH, a woman not his wife. 4. On 1 October 1984, the applicant met with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the Uniform Code of Military Justice (UCMJ), which authorized the imposition of a bad conduct or dishonorable discharge. He stated he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. a. He acknowledged that prior to completing his request for discharge; he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses, which he was charged, any relevant lesser-included offenses. Counsel also advised him of the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty. b. He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions. He also acknowledged that counsel advised him of and he understood the possible effects of a punitive discharge and that, because of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged he understood that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He further understood that there is no automatic upgrading nor review by any Government agency of an under other than honorable discharge, and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished a review of his discharge. He acknowledged that the act of consideration by either board did not imply that his discharge would be upgraded. d. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority?s consent or, without the separation authority's consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. A statement on his own behalf was submitted with his request in which he touted his honorable discharges from the RA and U.S. Army Reserve, time in service, awards, promotion eligibility and schooling. In his statement the applicant requested the separation authority grant him a general discharge in order to improve his chances in the civilian workforce. 5. On 11 October 1984, the separation authority reviewed the applicant?s case file as well as any documents submitted on his behalf and approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 26 October 1984, he was discharged accordingly. 6. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 7 years, 9 months, and 7 days of net active service during this period with no lost time. 7. There is no evidence indicating he applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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. Although an honorable or general discharge is authorized, 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. c. Paragraph 3-7b states that 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. DISCUSSION: 1. The applicant's record shows he was charged with the commission of offenses 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. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. 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. 4. 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. 5. In promoting the applicant to staff sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant. As a drill sergeant, the applicant was in a unique position of leadership who was trusted with the responsibility of motivating, training and caring for numerous highly impressionable trainees. Unfortunately, the applicant chose to abuse this position and violate the special trust and confidence imparted to him. In view of the applicant's abuse of a highly visible and respected position of trust in addition to the seriousness of the charges that were preferred, his record of service during his final enlistment was not satisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018831 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018831 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2