BOARD DATE: 19 October 2020 DOCKET NUMBER: AR20160010501 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests upgrade of his bad conduct discharge. He also requests to personally appear before the Board. 2. The applicant states: a. His discharge was inequitable because it was based on one isolated incident; he had no other adverse actions over his 17 years of service. Losing those 17 years has been his biggest punishment, something he must face each and every day. He was a paratrooper and, as a result, incurred a back and neck problem; 3 years ago, his neck injury required surgery. b. He feels his bad conduct discharge is more like a "life-sentence." He did not commit the heinous crimes that were charged and, he contends, he did not deserve this discharge. Over the past 30-plus years, he has had absolutely no negative criminal behavior, not even a traffic violation. He was not, and is not a criminal. He is now a responsible family man with full-time employment at a great company. He has spent the time since his discharge caring for his family and serving his community by being a volunteer firefighter. At the time of his court-martial conviction, he was young and a bit careless. c. His intent is to present factors that, he argues, will support a significant reassessment of his court-martial conviction. (1) There are times when the rules of evidence can obscure or exaggerate the true facts. In his case, the military judge significantly restricted his defense counsel's ability to cross-examine his accusers. As a result, the trial counsel was able to, in effect, paint an unrealistically sympathetic picture of his accusers, and distorted the facts and circumstances surrounding his charges; justice was not achieved. Additionally, he notes, his conviction and punishment had an adverse effect on his squad's morale. (2) He asks the Board to exercise its independent powers of review to examine the circumstances surrounding the allegations. The applicant further requests consideration be given to the fact he devoted 17 years to serving his country and spent two tours in the 82nd Airborne Division. He earned 6 honorable discharges, as well as numerous awards, certificates, and favorable evaluations; all showed he was an outstanding noncommissioned officer (NCO). He was continually praised by his immediate superiors, peers, and subordinates for his excellence. His evaluations contained such phrases as, "loyalty beyond reproach"; "hero of the battle during JRTC (Joint Readiness Training Center)"; "top-gun stinger competition champion"; and "mentored subordinates to win Battalion Soldier of the Month and Quarter" (on at least four separate occasions, as he recalls). Because he went into a transportation military occupational specialty from air defense, he gained a good reputation for making his Soldiers tougher and better. (3) He has included as evidence written statements from some of those with whom he served; the qualities they describe were also reflected in their trial testimony. One of his female subordinates, Staff Sergeant (SSG) H__ S__, testified she enjoyed his leadership style. She found him to be fair and competent; she saw the applicant treat all Soldiers (male or female) the same. She stated, "At no time did [she] see [the applicant] act inappropriate [sic] in my presence." (4) While some cynical observers might contend Soldiers will often disregard misconduct to say positive things about their comrades, it is rare for someone facing court-martial charges to receive the unqualified support of his first sergeant (1SG) and former company commander. Sadly, his former company commander was prevented from addressing issues he knew to be true and would have had a bearing on his accusers' credibility. (5) Those he supervised, as well as his immediate chain of command, held him in their highest regard; it was only those who were "higher up," and far removed from seeing his daily duty performance, that reacted to the allegations with "automatic, typical, and 'politically' correct disapproval." The applicant notes, "This is not to say that those higher in (his) chain of command acted insincerely. However, they were not in position to assess the facts and circumstances that took place in (his) company." In that context, the applicant contended the court- martial convening authority should have weighed and evaluated the observations of those closest to the situation; especially given that many of his witnesses felt constrained by the limitations set by his military judge. (6) In addition to his exceptional reputation, he asks the Board to consider the reputation and character of his accusers. There are some who would maintain an accuser's character is not particularly relevant to their truthfulness and veracity; he asserts this is especially the case when the accuser is a woman and the allegations involve sexual comments. The applicant opines, many contemporary jurists significantly limit a counsel's ability to question an accuser's overall morals, fitness, and character. He remembers, during his court-martial, this particular issue was the crux of the conflict between the military judge and his defense counsel. The questions that were permitted "failed to give the true flavor of the character and morale (sic) fitness of the 3 women accusing (him) of sexual comments and 'unwanted touching.'" To this day, the applicant respectfully disagrees with the military judge's application of the rules of evidence. (7) The applicant argues the character of his accusers was clearly relevant; however, the trial counsel was able to project an "air of innocence" and a sense of intimidation that was inconsistent with what really happened. The applicant claims he contended at the time that any woman who bares her breasts to male Soldiers in the barrack during the duty day is not so easily intimidated by sexual comments. He further argues, had his panel known of this conduct, along with knowing of that person's "potty-mouth" and lewd behavior, they would have seen her testimony in a different light. Additionally, the applicant maintains his panel would have found his accusers' testimony far less compelling if they had understood one of the accusers was referred to as the "barracks whore," was often seen with "MANY" male Soldiers, and that all three regularly used vulgar and sexually explicit language in the presence of other males and females. (8) The applicant contends all three women talked with one another and had a relationship. He recalls all three had issues with his leadership and were, at best, marginal Soldiers. He also notes, during his trial, one government witness was a competent, young female private first class; she had the least to say about him and never indicated she was a victim of harassment. The applicant asserts, it was no coincidence these accusers were marginal Soldiers; their testimony was contradicted by others, and there were no objective and neutral witnesses to corroborate his accusers' allegations. Even when other Soldiers were present, no one was able to verify their claims. He further contends, if it were true that he "routinely" harassed other women in the platoon, it would seem highly implausible that SSG H__ S__ never saw him; it was impossible for him to physically touch a woman in the presence of other Soldiers without being seen. (9) He states it is very disturbing that there was no evidence independent of what his accusers alleged to corroborate his supposed misconduct. The applicant acknowledges he was not a perfect Soldier; he affirms he permitted "the situation in (his) squad to become too relaxed." By that he means he allowed his accusers to engage in a banter with their male counterparts, which, in turn, created an unwholesome and unprofessional environment. In his defense, he states he had no prior experience supervising women. Nonetheless, he contends he was, and still is a good, loyal, hard-working individual whose overall performance enhanced the readiness of his fellow Soldiers. (10) The punishment he received failed to take into account his unquestioning loyalty, dedication, and esprit de corps over his 17 years of service. He observes it is ironic that, in recent history, there are general officers who committed far worse, but their punishment was but a fraction of what he received. He maintains this is fundamentally unfair; and while he has great respect for the lawyers who represented his accusers, he disagrees with their assessment of him. He feels there is room for a different view and contends his former 1SG and commander were much closer to the truth. (11) The applicant states he has been a loyal father and husband; he and his wife have raised a daughter who has had numerous academic and athletic achievements. He essentially contends the quality of his overall service, along with having no criminal record, no traffic violations, no tickets, and no accidents should serve to justify the upgrade of his discharge. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim) * Results of a background investigation * Driving record * Five letters of support * Six Honorable Discharge Certificates * Three Army Commendation Medal Certificates * Eight Army Achievement Medal Certificates * Joint Service Achievement Medal Certificate * Airborne Course Training Certificate * Jungle Warfare Training Certificate * Primary Leadership Development Course Certificate * Basic NCO Course Diploma * Emergency Lifesaver Certificate of Training * Ten Certificates of Achievement * U.S. Air Force Air Movement Operations Course Certificate of Achievement 2. Evidence from the applicant’s service record, and Department of the Army and Department of Defense records and systems: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 22 May 1984 * DA Form 2166-7 (NCO Evaluation Report) for rating period February 2000 through January 2001 * General Court-Martial Orders Number 31, dated 14 November 2001 * U.S. Army Court of Criminal Appeals Decision, dated 13 September 2004 * General Court-Martial Order Number 126, dated 16 September 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 16 December 2005 FACTS: 1. While 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. The applicant enlisted in the Regular Army on 26 July 1984. 3. He was promoted to SSG effective 1 February 1997. 4. While assigned at Fort Bragg, NC, the applicant was tried by a general court- martial. a. He pleaded not guilty to, but was convicted of all charges, listed below: * Article 92 (Failure to Obey an Order or Regulation), UCMJ: one specification of disobeying the lawful order of Lieutenant Colonel G.L.J. * Article 93 (Cruelty or Maltreatment), UCMJ: five specifications of maltreating five female Soldiers by directing repeated offensive gestures and comments of a sexual nature * Article 134 (General Article – Indecent Assault), UCMJ: six specifications of indecent assault (three of which were consummated by a battery) * Article 134 (General Article – Obstructing Justice), UCMJ: two specifications of wrongfully endeavoring to alter witness testimony regarding sexual harassment allegations, with the intent to impede justice b. Sentence was adjudged on 19 January 2001 and consisted of reduction to private (PV1)/E-1, confinement for 4 months, bad conduct discharge, and the recommendation that no pay and allowances be forfeited during confinement. c. The general court-martial convening authority approved the sentence and, except for the pending appellate review of the bad conduct discharge, ordered it to be executed. Forfeiture of pay was deferred. 5. On 13 September 2004, after considering the entire record, the U.S. Army Court of Criminal Appeals determined the findings of guilt and sentence were correct in law and fact; both were affirmed. Based on the completion of the appellate review, the applicant was directed to be discharged. 6. On 16 December 2005, the applicant was separated with a bad conduct discharge. His DD Form 214 shows he completed 21 years, 1 month, and 13 days of net active creditable service, with lost time from 20010119 to 20010426. He was awarded or authorized the National Defense Service Medal and Army Service Ribbon. 7. The applicant provides: a. Documentation of a background investigation of the applicant indicating no criminal records. Also submitted is the applicant's driving record; a stop sign violation in 1994 and a speeding ticket in 2000 are reflected. b. Five letters of support. (1) Letter from H__ S__, who states she has known the applicant for over 18 years; he was her squad leader from 2000 to 2002. She affirmed he was a man of strong Army values who ensured his Soldiers were disciplined and the best paratroopers in the Army. She always disbelieved the accusations made by the three female Soldiers; the applicant's three accusers failed to meet the high standards of the applicant, the 82nd Airborne Division, and the Army. She felt, because they were not meeting standards, they falsified their accusations to obtain rank and/or leave the unit. (2) SSG (retired) S__ S__, III, submits a letter which states he served with the applicant when he was a sergeant (SGT) and the applicant was a SSG. The applicant was a very hard, strong NCO who was always fair. Because he was strict, you would hear his squad complain. The applicant had a male and female SGT under him; the female SGT always felt she was being mistreated; she later made what the writer felt were false accusations against the applicant. The writer asserts the female sergeant barely conducted physical training, would come up with excuses as to why she should not be there, and her uniform was often not up to standard. Most of all, she was having an inappropriate relationship with one of her Soldiers. This female NCO reported that the applicant physically assaulted her while the applicant inspected her at her place of duty; the writer states he was walking with the applicant during the whole inspection and never saw the applicant attempt to physically grab the female SGT. (3) Letter by Master Sergeant (retired) T__ M__. He served with the applicant from 1998 to 2003 initially as a peer and later as his superior; as such, he has direct knowledge of the applicant's character. The applicant led by example and enforced Army standards. The allegations leveled against the applicant were made by sub-standard Soldiers who did not like him or his leadership style. The writer essentially feels it is unjust that the applicant must live with an adverse discharge due to the actions of some disgruntled Soldiers. (4) Letter from now Captain J__ A__ who writes he served under the applicant between 1999 and 2000. He never witnessed the applicant commit any inappropriate actions. (5) Letter from the Chief of Fire and Emergency Services, which states the applicant served as a firefighter from January 2011 to June 2012. He came with no prior experience and performed nearly 250 hours of certification training. He was a great person who worked well with others. Personal priorities predicated his departure. c. The applicant includes three Army Commendation Medal Certificates, eight Army Achievement Medal Certificates, a Joint Service Achievement Medal Certificate, and numerous training certificates and certificates of achievement. 8. The evidence of record confirms that, on 19 January 2001, he was convicted by a general court-martial; part of the resulting sentence included a bad conduct discharge. He had been charged with committing numerous serious violations of the UCMJ. A punitive discharge was an authorized punishment for the offenses charged. The appellate review was completed and, following the correction of an error, the sentence was affirmed and ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations. 9. The applicant provides arguments intended to support the Board's reassessment of his court-martial conviction. By law, the Board's authority extends only to addressing the actions taken by reviewing authorities or to afford clemency. To determine if clemency is warranted, the Board should consider the applicant's statements, his documentary evidence, and all available evidence in his record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. 2. The Board found limited evidence of remorse or contemporaneous, independent corroborating evidence to support the applicant’s statement that his discharge was inequitable because it was based on one isolated incident. The record reflects that it was not a sole act of misconduct, but repeated acts of misconduct that spanned the period 1 July 1999 to 31 August 2000, and included maltreatment of numerous of his female subordinates. The Board found insufficient evidence of possible mitigating factors for the repeated, serious nature of the misconduct. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. 3. The Board found that the evidence presented was sufficient to render a just and equitable decision. Therefore, a personal appearance is not warranted in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. REFERENCES: 1. Title 10 (Armed Forces), U.S. Code, section 1552(b) (Correction of Military Records: Claims Incident Thereto). a. This provision of law provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. It 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. b. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice (UCMJ), action to correct any military record of the Secretary's Department may extend only to correction of a record so that it reflects actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was a separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense. A Soldier will not necessarily be denied an honorable discharge solely because of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. An honorable discharge may be furnished when disqualifying entries in the Soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 stated a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. The Table of Maximum Punishments in the Manual for Courts-Martial shows the following maximum punishments: * Article 92 (Failure to Obey Other Lawful Order), UCMJ: bad conduct discharge * Article 93 (Cruelty or Maltreatment), UCMJ: dishonorable/bad conduct discharge * Article 134 (General Article – Indecent Assault): dishonorable discharge * Article 134 (General Article – Obstructing Justice): dishonorable/bad conduct discharge 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 (to include that provided by an applicant), 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that 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. ABCMR Record of Proceedings (cont) AR20160010501 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2