ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170001172 APPLICANT REQUESTS: * Upgrade his dishonorable discharge to uncharacterized * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board) * Two letters of support from the applicant's mother * General Court-Martial Order Number 5 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he is an honest man who made an honest mistake. He served honorably for over 23 years and is requesting this upgrade so he can support his family. He contends his retirement is the capstone of his military career; up until his court-martial, he met all requirements and honestly believes his time-served should remain flawless without compromise. He asserts he gave his all to an organization he dearly loves, despite a momentary loss of value that landed him in prison. He maintains he merely missed the opportunity of a lifetime of achievements by finalizing his career with what he considered "the seal of the deal." He asks the Board to consider the overall quality of his service when reaching its determination in his case. In addition, he wanted to make the Board aware of serious issues both prior to his court-martial and since his imprisonment. a. He received a noncommissioned officer evaluation report (NCOER) for the rating period 20130730 through 20140610; the report made references to sexual assault allegations even though his court-martial had not yet taken place. In addition, this adverse NCOER triggered a Qualitative Management Program (QMP) mandatory retirement email; his command sergeant major notified him of the email in January 2015. He notes his official retirement date would have been 1 February 2016, but the court found him guilty of sexual assault on 24 February 2015; he submitted his retirement documents prior to his court-martial, but never received confirmation his chain of command signed his personnel action paperwork. b. Since his incarceration, he has opened cases under the Prison Rape Elimination Act (PREA) because four inmates made sexual advances toward him. c. The applicant requested a further judicial review of his case by the appellate courts. He asserted the appellate courts should reverse the military judge's ruling on the grounds of unlawful command influence and illegal pretrial restraint. He put forward arguments and cited case law in support of his request. d. In a separate document, titled "Evolution of War on Sexual Assault," the applicant contends, "Our democracy continues to wither from fragile uncertainty deeply rooted in Congress. 'Congenital Deformity' and other unrelenting and indecisive mantras come together releasing verdicts that don't support the cause of members being charged with sexual assault." The "military's administrative approach to military justice and sexual assault is wrong and commanders are afraid to admit it. Camaraderie amid service members is becoming distraught." He submits further arguments and affirms he will continue the fight. e. In a third statement, the applicant provides more details regarding his PREA complaints, and asserts his intent to conduct a search of "litigious class actions against this facility (the military prison) and the inmates involved in (the) sexual assault case." 3. The applicant provides two letters of support from his mother; she offers some context for the applicant's conviction and, in effect, contends the sexual assault victim (the applicant's stepdaughter) was a drug abuser who made false accusations against the applicant. Additionally, she submits numerous arguments, and includes comments, such as: "mass incarceration has been largely fueled by misguided sexual assault policies and excessive sentencing in the military..." While she acknowledges the applicant pled guilty, she contends her son has suffered long enough for a crime he did not commit. She hopes her letters will generate enough support to reduce his 6-year sentence, if not allow his release. 4. The applicant's service records show: a. He enlisted into the Regular Army on 26 November 1991, and served continuously, with periods of honorable service from his initial enlistment until 27 November 2005. He immediately reenlisted on 28 November 2005. b. On 24 February 2015, consistent with his pleas, a general court-martial convicted the applicant of violating the Uniform Code of Military Justice (UCMJ). (1) The court found him guilty of two specifications of knowingly and wrongfully possessing 24 videos of child pornography, and photographing, without consent, the private areas of Ms. X__ X__, a child under 16 years. In addition, the court convicted him of assault, in that he unlawfully grabbed Ms. X__ X__'s hand. (2) The court sentenced him to 6 years confinement, forfeiture of all pay and allowances, reduction to private/E-1, and a dishonorable discharge. Effective 24 February 2015, the applicant was placed in confinement. (3) On 23 June 2015, the general court-martial convening authority approved the sentence and, except for the dishonorable discharge, ordered its execution. c. On 21 October 2015, the U.S. Army Court of Criminal Appeals affirmed the court's findings and sentence; on 21 December 2015, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for review. d. On 29 February 2016, a general court-martial order announced the completion of the appellate review process and directed the execution of the applicant's dishonorable discharge; on 6 May 2016, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 23 years, 2 months, and 29 days of net active creditable service. He was awarded or authorized: * Army Achievement Medal (5th Award) * Army Good Conduct Medal (6th Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Humanitarian Service Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Army Lapel Button 5. Regarding the applicant's request for a personal appearance, AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, a Board panel or the Director, ABCMR may authorize a request for a hearing on a case-by-case basis. As a separate matter, the Board's role is to make corrections when it finds an error or injustice in a military record; it is not an investigative body. The Board reaches its determinations based on the evaluation of evidence presented by an applicant, along with relevant documentation available in his/her record. 6. As to the applicant's request for a judicial review, the evidence of record affirms his case underwent the appellate reviews required by the UCMJ. In addition, Federal law mandates that the Board cannot reassess or set aside a conviction; instead, it can only amend the severity of the sentence imposed in the court-martial process. 7. The applicant requests his dishonorable discharge be changed to show an uncharacterized character of service. By regulation, this character of service applies to Soldiers separated while in an entry-level status (i.e. within 180 days of continuous active duty service) and/or for those cases where the Soldier's enlistment is voided. 8. The applicant maintains he is an honest man who made an honest mistake; he argues the Board should consider the overall quality of his 23-year career when deciding his case. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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 did not find any evidence of error, injustice, or inequity due to the severity of the misconduct. The Board found the applicant’s statements in "Evolution of War on Sexual Assault," to indicate a lack of remorse for his misconduct. The Board agreed that the applicant’s discharge characterization is appropriate. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice 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. 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): Not Applicable REFERENCES: 1. Title 10, USC, 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 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. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. 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 (Honorable Discharge) stated an honorable discharge was 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 were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) 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 3-9 (Uncharacterized Separations) is given to Soldiers separated while in an entry-level status (i.e. within 180 days of continuous active duty service) and/or in cases where the Soldier's enlistment is voided. d. Paragraph 3-10 (Dishonorable Discharge). A Soldier was given a bad conduct discharge pursuant only to an approved sentence of a general court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. 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, 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings on a case-by-case basis. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001172 3 1