ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20160015213 APPLICANT REQUESTS: An upgrade of the character of his service from under other than honorable conditions (UOTHC) to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Permanent Orders for the Driver Badge with “W” Bar * General Counseling Statements * Laudatory Statements * Letters of Appreciation * Certificates for Completion of Training * Portion of Separation Package FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, please review the documents attached to his application and upgrade the character of his service from UOTHC to general. He believes the majority of his service was commendable. He served as a driver at West Point, NY and at Fort Leavenworth, KS and was commended many times for his work as a driver. a. He was reassigned to the 47th Engineer Company, Fort Wainwright, AK as a non-engineer. This was a combat engineer unit that supported the 172nd Infantry Brigade. He had not served in the field since basic and advanced individual training. He tried his best, but it seemed as if a request for reassignment would be better. b. He requested a reassignment in December 1982 and it was denied. The first sergeant stated the only way he would leave the unit would be in pay grade E-4. Things went downhill from that point. He was having marital problems and the problems at the unit were getting to the point of harassment on a daily basis. He was being written up for things that did not require a counseling statement. It got worse and worse and he was not in a good place. He did something that was really stupid; he regrets and admitted to doing it. The documents that he has attached details the history of the incident. Nothing of this nature has happened in his post service life. He has led a successful post service life. He has nothing more than a speeding ticket. c. He accepted the chapter 10, discharge at the time to alleviate problems for others and for the good of the Army. He asks that the Board review his total record and upgrade his discharge based on his total Army career. 3. The applicant served honorably in the Regular Army from 2 August 1977 to 25 March 1980. He reenlisted in the RA on 26 March 1980 and he held military occupational specialty (MOS) 64C (Motor Transport Operator). He was promoted to the rank of sergeant/E-5 on 5 June 1981, which is the highest rank that he held. 4. On 20 September 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for violating a lawful order from a commissioned officer not to visit his wife or go to her quarters without an escort. He received a forfeiture of pay, extra duty, and restriction. 5. The applicant provides a copy of a personnel action that shows on 14 December 1982, he requested a reassignment, the unit’s response is not available; the request has a handwritten note that states "Commander refused to sign..threatened by first sergeant with him saying the only way [the applicant] would leave this company was as an E4." 6. On 20 July 1983, he accepted NJP for having sexual intercourse with a married woman, not his wife. He received a reduction in rank from sergeant/E-5 to specialist/E-4, a forfeiture of pay, and restriction. 7. On 19 August 1983, the Chaplain, 327th Infantry wrote a memorandum to “Whom It May Concern,” recommending the applicant be administratively discharged. To require the two children involved to testify would cause additional trauma, especially for the child who now resided in Oklahoma. The possible disillusionment of his marriage, coupled with the events of the past year relating to other negative events, to include this charge, indicate psychological help is necessary. The chaplain recommended swift action be taken to separate under the provisions of chapter 10 and if possible, psychological counseling be ordered. 8. On 24 August 1983, he was charged with: a. Taking indecent, and improper liberties with PH a female under 16 years of age, by untying the straps of her jumpsuit, and exposing and staring at her chest, with the intent of gratifying his sexual desires between May and September 1982. b. Committing a lewd and lascivious act upon the body of EKM, a female under 16 years of age, by fondling her genitals with his hand, with the intent of gratifying his sexual desires in April 1983. 9. On 6 September 1983, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of chapter 10, AR 635-200. He signed a request for discharge for the good of the service and the available evidence does not contain any statements submitted in his own behalf. a. The applicant's chain of command recommended approval of his request, although trial by court-martial was preferable for such serious offense. His chain of command stated the primary consideration in their recommendation was the potential for lasting emotional harm to the victims if they were required to testify at trial. The family of the first victim had left the command and would have to be returned, assuming the parents would cooperate in having the child testify. The mother of the second victim had been uncooperative in allowing the child to be interviewed. b. On 4 October 1983, the appropriate authority approved the applicant’s request for discharge for the good of the service, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC. 10. On 26 October 1983, he was discharged accordingly. His DD Form 214 shows he completed 6 years, 2 months, and 25 days of total active service, with no lost time. His awards are listed as the Army Service Ribbon, Good Conduct Medal, and Driver Badge. 11. The Army Review Boards Agency Clinical Psychologist was asked to determine if there is a nexus between the information/diagnoses contained in the documentation and the misconduct that resulted in the applicant's discharge. The Board was provided the complete medical advisory, it states, in pertinent part: a. One medical record was found to be relevant. A 23 December 1981, “ER” medical note indicating the applicant reported he was repeatedly hit in the head by his spouse with her fists. b. VA records indicate the applicant has not received a service related [rating] percentage. He was treated by the VA in 2017 for hypertension and bronchitis. There were no other relevant findings in an examination of VA records. c. Psychologist Opinion: There are no mitigating factors in this case. The applicant’s fondling for sexual gratification of two separate 7 year old girls is a significant UCMJ offense. The applicant’s misconduct of adultery is another offense which could have resulted in administrative separation from the Army. The numerous negative counseling statements regarding the applicant’s poor performance could have also resulted in administrative separation from the Army. A review of the available records indicates there are no mitigating Behavioral Health factors or conditions in this case. d. There is no data that supports PTSD [post-traumatic stress disorder]. e. The applicant met retention standards in accordance with AR 40-501 at the time he was administratively separated from the Army. f. The applicant was separated from the Army on 26 October 1983 in accordance with chapter 10, AR 635-200. No Behavioral Health evaluation was conducted prior to the applicant’s administrative separation, because Title 10, Section 1177 went into effect on 28 October 2009. 12. The applicant provides the following documents: a. Permanent Orders for the Driver Badge with “W” Bar and certificates for Completion of Training b. General Counseling Statements, dated between July 1982 to August 1983 that show he was counseled for failing to be at his appointed place of duty at the time prescribed, his duties, missing formation, sleeping on duty, lack of motivation, need to improve his appearance [three times], his attitude [twice], breaking a window with a rock at the motor pool, and for being disrespectful toward other Soldiers. c. Documents that show throughout his military service he received numerous laudatory statements and letters of appreciation for a job well done. He was also Soldier of the Month in 1981 and driver of the month in 1979; and e. Portions of his separation package 13. The applicant contends, in effect, the documents the documents he provided should be considered and his UOTHC characterization of service should be upgraded to general. a. He believes the majority of his service was commendable. As a driver at West Point, NY and at Fort Leavenworth, KS, he was commended many times for his work as a driver. He was reassigned to the 47th Engineer Company, Fort Wainwright AK as a non-engineer. He had not served in the field since basic and advanced individual training. He requested a reassignment in December 1982 and it was denied. He was having marital problems and the problems at the unit were getting to the point of harassment on a daily basis. He was being written up for things that did not require a counseling statement. It got worse and worse and he was not in a good place. He did something that was really stupid; he regrets and admitted to doing it. The documents that he has attached details the history of the incident. Nothing of this nature has happened in his post service life. He has led a successful post service life. He has nothing more than a speeding ticket. b. He accepted the chapter 10, discharge at the time to alleviate problems for others and for the good of the Army. He asks that the Board review his total record and upgrade his discharge based on his total Army career. 14. Army Regulation 635-200 states in a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 15. In reaching its determination, the Board can consider the applicant's petition, his service record, and his submissions in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, an advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s service record, the frequency nature and severity of his misconduct, his statement, the conclusion of the advising official and whether to apply clemency or liberal consideration. The Board found no mitigating factors for the misconduct that led to his separation and the applicant’s statement regarding his post-service behavior was insufficient to overcome the severity of the misconduct and support clemency. The Board determined that the character of service the applicant received at separation was not in error or unjust. The Board concurred with the correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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: With the exception of the administrative correction stated below, 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. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 for the period ending 26 October 1983 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend the DD Form 214 by adding the following entry “CONTINEOUS HONORABLE ACTIVE SERVICE FROM 770802 - 800325.” REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-200 (Enlisted Personnel – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. AR 600-200, in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service UOTHC he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 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. 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. ABCMR Record of Proceedings (cont) AR20160015213 4 1