ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20170003329 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Criminal Investigation Division (CID) Action Report * Army Discharge Review Board (ADRB) Decision Letter 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 that he was discriminated against based on his race. His lawyer strongly suggested to make a deal. They informed him that Fort Stewart 3rd Infantry Division (3ID) court system do not favor people for color. The head of the military, President Trump has publicly made sexual assault comments. If the armed services can accept President Trump grabbing women and walking in on young girls dressing for a pageant, by that standard, his discharge should be upgraded to honorable. Applicant is requesting the names of the ADRB members for case number AR20160003013. 3. The applicant provides: a. The CID Action Report detailing the investigative of the applicant case. The CID office was notified by, installation Sexual Assault Response Coordinator (SARC), that a female victim reported she was sexually assaulted by a male Soldier. Preliminary investigation revealed that on 6 December 2014, she accompanied male Soldier to a restaurant for dinner. She then accompanied him to his hotel room to watch some movies. Upon arrival he produced a handgun and placed it under the corner of the a. mattress. Shortly afterwards, he grabbed her, pushed her down and, attempted to rape her. She reported she head butted him wherein he let her go, and she fled the room. She initially reported the incident to Police Department on 9 Feb 2015. b. The ADRB memorandum explaining their review of the applicant case and their reasoning for denial of Soldier request. The ADRB states the evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 4. A review of the applicant’s service records shows the following: a. He enlisted in the U.S. Army Reserve (USAR) on 25 January 1999. He reenlisted on 14 January 2005 for 6 years and his final reenlistment was on 24 January 2014 for an indefinite reenlistment. b. He entered active duty on 10 September 2012. c. Court-martial charges were preferred on 22 June 2015. A DD Form 458 (Charge Sheet) indicate he was charged with 1 specification and 2 specification for using unlawful force, without consent, and with an intent to gratify his sexual desire, on or about 6 December 2014. d. He consulted with legal counsel on 24 November 2015. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged: * he was making the request of his own free will and he had not been subjected to any coercion * by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense * he understood that if the discharge request was accepted he could be furnished an Under Other Than Honorable Discharge * he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * * he could be deprived of his rights and benefits as a veteran under both Federal and State laws e. Consistent with the chain of command recommendation, on 25 November 2015, the separation authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. f. On 23 December 2015, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from the Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition (Character of Service) and in lieu of trial by court-martial (Narrative Reason for Separation). He had a continuous honorable active service from19990125- 20140123. He was reduced the lowest enlisted grade. He completed 16 year, 10 months, and 19 days of total service. He was awarded or authorized: * National Defense Service Medal * Army Commendation Medal (2nd Award) * Army Achievement Medal * Overseas Service Ribbon * Armed Forces Reserve Medal W/M Device * Non-Commissioned Officer Professional Development Ribbon * Army Reserve Component Achievement Medal (4th Award) * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal 5. By regulation AR 635-200, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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 seriousness of the misconduct which led to the 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. 6/13/2019 X 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 635-200 (Active Duty Enlisted Administrative Separations), 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. Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to AD or ADT or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. b. Paragraph 3-7b (General discharge) 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) 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, security reasons, or in lieu of trial by court martial. d. Paragraph 3-11 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also 1. applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, ABCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.