ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20170002220 APPLICANT REQUESTS: in effect, a reconsideration of his earlier request to upgrade his discharge from under other than honorable to under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130002278 on 18 September 2013. 2. The applicant states that he would like an upgrade of his under other than honorable discharge. He served 6 years, 8 months honorably and was awarded 2 Army Good Conduct Medals in 1966 and 1969. He is requesting this upgrade before he dies. He is currently 76 years old. 3. A review of the applicants records show: a. He enlisted in the Regular Army (RA) on 15 February 1963. b. He was honorably discharged on 15 February 165. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation (AR) 635-205 (Discharge and Release Convenience of the Government), Separation Program Number (SPN) 313 (Immediate Re-enlistment). c. He reenlisted in the RA on 16 February 1965. He was honorably discharged on 14 November 1967. His DD Form 214 (, shows a discharge date of 14 November 1967 under the provisions of AR 635-200, SPN 313. d. He reenlisted in the RA on 15 November 1967. e. He served in Germany from 30 July 1930 to 8 July 1966 and from 23 March 1967 to 21 July 1968. a. f. He was honorably discharged on 7 February 1969. His DD Form 214 show she was discharged under AR 635-200, SPN 214 (to accept commission) with an honorable discharge. g. On 8 February 1969, the applicant was appointed as a Reserve commissioned officer of the Army and executed oath of office on 8 February 1969. h. An investigators statement was completed on 17 June 1969 following a complaint where the applicant was accused of exposing himself to an individual in the cafeteria of building 1600 on Fort Benning, GA The applicant was apprehended on 17 June 1969 after being identified by the complainant and after being observed with his hand in his crotch area with an erection once the investigators told him to stand. The applicant was advised of his rights to remain silent and to consult with a lawyer. During questioning, the applicant stated that he had seen the complainant in the cafeteria for about a month and that she had twisted in her chair and looked toward his crotch in a manner which indicated to him that she was interested in perhaps having an affair. The applicant admitted to exposing his penis on 13 June 1969 and the day he was apprehended and further stated that this was the only such incident in his life and that he no intentions of harming anyone. i. Court martial charges were preferred against him on 25 June 1969. His DD Form 458 (Charge Sheet) indicates he was charged with: * one specification of willfully and wrongfully expose in an indecent manner to the public view his penis on 13 June 1969 * one specification of willfully and wrongfully expose in an indecent manner to the public view his penis on 17 June 1969 * one specification of wrongfully expose in an indecent manner to the public view his penis on 13 June 1969, which constitutes conduct unbecoming an officer and gentleman * one specification of willfully and wrongfully expose in an indecent manner to the public view his penis on 17 June 1969, which constitutes conduct unbecoming an officer and gentleman j. On 9 July 1969, DD Form 457, shows that the applicant was read the provisions of Article 31, and advised: * nature of the charges against him * name of the accuser and names of the witnesses against him * right to counsel, right to cross examine witness, right to present anything on his behalf, right to remain silent k. On 18 July 1969, the staff judge advocate recommended that the applicant be allowed to resign in lieu thereof should he elect to do so. a. l. On 6 August, the applicant submitted his resignation for the good of the service under the provisions of AR 645-120 (Officer Resignation and Discharges) chapter 5 (resignation for the good of the service, and acknowledged that he may consult counsel and be represented by legally qualified counsel, does not want to appear before the board, has not been subject to coercion, and had been afforded the opportunity to present matters in explanation, mitigation, and defense. m. His immediate chain of command recommended approval of the applicant’s resignation with a discharge under the provisions of AR 645-120, chapter 5 (resignation for the good of the service) with the issuance of an Honorable Discharge Certificate. n. On 2 September 1969, his intermediate commander recommended approval of the applicants discharge under the provisions of AR 645-120 chapter 5 with a General Discharge Certificate.] o. On 8 September 1969 the separation authority approved the resignation of the applicant with a separation under the provisions of AR 645-120 chapter 5 with a General Discharge Certificate with court-martial proceedings being held in abeyance pending final determination by Department of the Army (DA). p. On 29 October 1969, the DA Board recommended that the resignation be accepted and that a discharge under other than honorable conditions be issued. The recommendation conflicted with the recommendation of the officer exercising general court-martial jurisdiction. q. On 26 November 1969, he was discharged under the provisions of AR 635-120, chapter 5 with an under other than honorable conditions characterization of service. His DD 214 shows he served 6 years, 9 months, and 12 days of active duty service during this period. 4. On 17 September 2013 ABCMR considered his case. The Board stated that the applicant’s voluntary request for separation under the provisions of AR 635-120, chapter 5 for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. His service was appropriately characterized and based on the available evidence he could have been tried by a general court-martial and he would have a federal conviction on his records. Or, he could have accepted trial by court-martial and he would have martial and been exonerated of all charges. The Board denied his request. 5. By regulation, AR 635-120 ((Officer Resignation and Discharges) chapter 5 states that an officer may submit a resignation for the good of the service when court-martial charges are preferred, he is under a suspended sentence of dismissal. 1. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple serious misconduct events within the record, as well as a lack of character evidence to show that the applicant has learned from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/30/2019 CHAIRPERSON Signed by: 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 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) 600-8-24 (Officer Transfers and Discharges), paragraph 1-21a, 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 3. AR 600-8-24, paragraph 1-21b, provides that a general discharge is a separation from the Army under honorable conditions is satisfactory but not sufficiently meritorious to warrant an honorable 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 based on 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