ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20170000684 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Self Authored Statement * Facebook Messages * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 states: a. He was accused of rape in late 2011 by a prior service member and her boyfriend. His character was damaged, his authority stripped from him and many opinions were formed against him. Another Noncommissioned Officer (NCO) was also accused of the same rape allegation, at the same time. During the time of the allegation, he was in the final stages of his medical board. His Rear Detachment Commander along with his Battalion Commander decided to follow through with a court martial. b. More than a year later, the other NCO went to trial and was only found guilty of conspiracy out of a total of six charges to include rape. The victim and her boyfriend were caught lying while on the witness stand during the trial. It was discovered the rape allegation was plotted out and planned between the victim and her boyfriend via Facebook Messenger. She was not raped at all. After the other trial, he was presented an offer to go to trial or to complete a Chapter 13. After talking to his wife and considering the way his unit had treated them, he decided to go with the Chapter 13 and try as best to continue on with their lives. Nothing happened to the victim or her boyfriend, even though they were caught lying. There was no form of punishment for them at all. He does not believe that was fair at all and proper justice was not served. c. After being told he would not get far in civilian life with an other than honorable conditions discharge, he has accomplished many things. After receiving advice from many other Veterans and VA patrons, he was told he should fight for a discharge correction. He is 60 percent disabled and currently in his second year of college and studying to become a Nuclear Energy Technician. He is a teacher at a local elementary school and is also a Site Director for an after school program via the boys and girls club. He has progressed a lot after his discharge in 2012, but he is very ashamed and embarrassed to explain why he received an under other than honorable conditions discharge. 3. The applicant provides: * A self authored statement outlining the circumstances of the discharge and also his side of the story. * Several pages of Facebook messages between the victim and her boyfriend * A copy of his DD Form 214 for the period ending 12 October 2012. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 September 2003. b. He served in Iraq from 4 October 2005 to 4 October 2006 and 18 March 2009 to 20 February 2010. c The complete facts and circumstances of this discharge are not available for the Board to review; however, the applicant was arraigned and the proceedings were terminated on 24 July 2012. The applicant’s request for discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10, for the good of the service, was approved on 19 September 2012 with an issuance of a discharge under other than honorable conditions. d. On 12 October 2012, he was discharged from active duty under the provisions of AR 635-200, Chapter 10, he was reduced to the lowest rank/grade private/E-1. His DD Form 214 shows he completed 9 years and 25 days of net active service. e. On 18 March 2013, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing, but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 7. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Board members considered the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination FY2018 guidance. Board members recognized that the issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. The Board found no evidence that all requirements of law and regulation were not followed and the applicant’s rights were fully protected throughout the separation process. Further, Board members believed that the applicant's discharge accurately reflects his overall record of service. 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 that 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. 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 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) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. b. Paragraph 3-7b (General Discharge) states 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. c. Paragraph 3-7c (Under Other Than Honorable Conditions Discharge) states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial. 3. Chapter 10 of this regulation states, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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 (BCMNRs) 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 court-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, 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170000684 4 1