ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 April 2019 DOCKET NUMBER: AR20170008172 APPLICANT REQUESTS: a. In effect, reconsideration of his earlier requests to change the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and be reinstated into the U.S. Army Reserve (USAR) by rescinding his separation order. b. As new requests, he asks for the following: * in effect, conduct a de novo review of his case on a priority basis to evaluate the legality of his discharge * provide for a rehabilitative transfer once reinstated * delete any files maintained in his official military personnel record (OMPF) that show a 1992 arrest APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online application for Correction of Military Record * U.S. Department of Justice, Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division document * U.S. Office of Personnel Management (OPM) Investigations Service Certification of Investigation * Department of Veterans Affairs (VA) letter * Applicant's résumé * Applicant's unofficial academic transcript * Record of Proceedings and associated documents for Army Board for Correction of Military Records (ABCMR) Docket Number AR20070000992 FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous considerations of the applicant's case by the ABCMR in Docket Numbers AR20060006173 on 9 November 2006 and AR20070000992 on 7 August 2007. 2. The applicant states: a. The reason he wants his case reviewed is because he claims the court-martial referral documents were never legally signed by a commander with the authority to authorize a trial by court-martial. While he acknowledges the charges were preferred, he asserts commanders can only offer the "in-lieu of court-martial" option after the legal signing of documents authorizing the court-martial. Based on the foregoing, he maintains his leadership violated his due-process rights. He further alleges his in- service stressors affected his judgment and he felt coerced into signing the voluntary discharge request. b. He served honorably in the U.S. Navy from 1989 to 1996; his service in the Army was honorable from 2001 to November 2003. In effect, when he considers the way the regulatory model should look for a proper and equitable "in-lieu of trial by court-martial" discharge, he asserts that model does not apply to his case. In the past, the Army Discharge Review Board (ADRB) found the Combat Stress Control (CSC) reports he provided were insufficient to warrant a change in the reason for his discharge. Despite regulations mandating the documentation of all medical conditions, his chain of command skirted this requirement. Certain elements within his chain of command viewed themselves as being above the regulation; as a result, the separation authority never saw all of his pertinent medical documentation. The applicant supplied instances of when he sought behavioral health resources, in effect implying his command did not submit this information to the separation authority for consideration. c. In November 2003, he was charged with violating Uniform Code of Military Justice (UCMJ) Articles 90 (Willfully Disobeying the Lawful Order of a Superior Commissioned Officer), 95 (Resisting Apprehension), and 134 (General Article – Wrongfully Forcing Protection Standards). He argues: * he did not violation Article 90 because he acted in self-defense; he experienced unchecked bullying and false claims about his character; he feared, if they could make up fantasies about him as a person, they could make up fantasies about his death * he was forced to defend himself and his family from cruelty, which involved actual and serious injury, during the periods of homelessness and unemployment that followed his improper separation * regarding the violation of Article 95, although it states a person who resists apprehension shall be punished as a court-martial may direct, he claims that attempting to escape by running is not resisting apprehension * the last charge occurred in the streets parallel to Mosul Airfield in Iraq; the street was under the unchallenged control of the U.S. military; while he admires his commander, she was wrong when she stated he posed a danger to the Soldiers who returned him from the streets to the unit d. The applicant describes how he received the copy of the request for discharge in- lieu of trial by court-martial from his appointed counsel, and that this document was presented 5 minutes after he read the charges against him. He contends this caused him to face an "adhesion contract," i.e. a document so imbalanced in favor of one party, there is a strong implication the contract was not freely bargained. (An adhesion contract refers to one drafted by a party in a position of power who essentially forces the other party to either "take it or leave it"). The applicant goes on to note the separation authority's approval memorandum was undated and reflected initials he reads as "DM," vice "DP" (where "DP" would be the correct initials of the separation authority). He further asserts someone initialed a mass-produced copy of the undated discharge request and typed in the applicant's name using desktop software. e. In February 2005, the ADRB responded favorably to his request by re- characterizing his service to honorable and restoring his rank. He describes the two previous times he petitioned the ABCMR, and states, after requesting the ADRB reconsider changing his narrative reason for separation, they told him he would be able to make a personal appearance before the ADRB. They later cancelled his personal appearance and transferred his case to the ABCMR. f. He reiterated his argument of the impropriety of his discharge in-lieu of court- martial and how he and his family suffered serious injury after his separation from the Army. He asserts he underwent an emotional roller coaster involving intense harassment over a 30-day period; eventually, when his cries went unanswered, he experienced "emotional death." He contends, "they destroyed (him) and never offered (him) a chance at rehabilitation." He quotes an unidentified regulation, which essentially requires the initiation of mental health evaluations; he notes past counseling forms show him being checked into CSC. g. Concerning his rights, he contends the record appears to suggest the applicant was afforded the opportunity to consult with a military lawyer. A candid investigation, however, affirms his position that his in-lieu of court-martial documentation was invalid. * a court-martial hearing was never scheduled * applicant's counsel failed to provide the general court-martial convening authority any of the applicant's achievements in support of a rehabilitative transfer * rather than offering alternative defenses, counsel only told him he had 5 minutes to sign the request for discharge h. The Supreme Court ruled a defendant considering a plea agreement was entitled to accurate advice from counsel; the applicant asserts his counsel's advice to "sign or go to jail" failed to meet the Supreme Court standard. The applicant goes on to quote a 1989 U.S. Court of Appeals decision, wherein it requires the "Secretary of the Army (to) re-characterize the undesirable discharge of a former service member who had initiated discharge proceedings upon the erroneous advice of counsel." He further states Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) shows commanders are to separate those Soldiers they judge will not sufficiently develop to participate in training and perform satisfactorily. i. Although a request for discharge contains language stating a Soldier facing separation can elect to submit statements in his own behalf and have his case heard by an administrative separation board, the applicant asserts there is no indication he was offered or actually declined either election. The UCMJ guarantees the right of a Soldier facing separation under other than honorable conditions to have their discharge case heard by an administrative discharge board (similar to a court-martial); his chain of command did not present him these options. Nor does the evidence of record show either his battalion or company commanders stated they believed the applicant would not have benefited from a rehabilitative transfer. j. The ADRB accepted his testimony "concerning CSC due to an 'absence' of evidence but the credible and documented evidence from various sources, presented to the board in past request for relief." In his current petition, he requests a rehabilitative transfer because there is nothing in the record documenting his commanders procedurally and properly presented him the in-lieu of trial by court-martial option after reading him the charges. The applicant contends he had a regulatory and legal/due- process right to have a court-martial hearing scheduled prior to presentation of the in- lieu of court-martial discharge option. k. In conclusion, the applicant submits the following points: * there are no authoritative signatures in the record approving a court-martial to address the charges against him * his in-service stressors were caused by the abnormal actions of his chain of command; his supervisor (the battalion adjutant), as well as the lawyer with whom his supervisor worked, placed themselves above the governing Army regulations as they successfully attempted to destroy him * his supervisor's quality of service, in terms of personal conduct and duty performance, was not consistent with Army standards * the applicant never diminished his quality of service to the point he no longer deserved to wear the uniform; he rhetorically asserts, in effect, the ADRB would not have upgraded his character of service if it determined he was a "problem Soldier" unfit to wear the uniform * he acknowledges he is fortunate, because many young people did not return from those same places where he served; he has tried to cope with the destruction of his professional reputation, but all he wants now is to live his life without facing the humiliation of discussing his Army background with his children * he argues, "discoverable abuses of power should not be allowed to stand in the ranks of America's military branches" 3. The applicant provides: * U.S. Department of Justice, FBI, CJIS document showing a Sheriff's office arrested the applicant in 1992 for assault and that a court vacated the charge and sentence in 2008 * OPM Certificate of Investigation indicating the completion of a security/suitability determination (result of the determination not listed on the document) * VA letter reflecting applicant's service in the U.S. Navy from 1 August 1989 to 30 September 1996, and the Army from 4 November 2002 to 26 November 2003 * Applicant's résumé showing work experience, education, and training from 1989 to 2014 * Applicant's unofficial academic transcript reflecting graduate school courses * Record of Proceedings and associated documents for Army Board for Correction of Military Records (ABCMR) Docket Number AR20070000992 4. The applicant's service records show: a. He enlisted in the USAR on 27 August 2001. As part of this enlistment, the applicant's recruiter completed DD Forms 369 (Police Record Check) and the applicant signed the forms authorizing the respective police agencies to release information about him. (1) A District Court in Washington State provided records showing the applicant's arrest for assault in 1992; the records also indicated, consistent with the applicant's plea, the court found the applicant guilty of assault in a trial/hearing conducted in 1993. (2) In a letter, written by the applicant to his recruiter, he explained the circumstances, took full responsibility for his actions, stated he had pled guilty (because of his military obligations with the Navy and to "get on with (his) life"), and affirmed the court had fined him $250. b. On 4 November 2002, he was called to active duty in an Active Guard/Reserve (AGR) status and deployed to Iraq on 19 April 2003. While in Iraq, his commander preferred court-martial charges against him on 4 November 2003; the charges were: * two specifications of willfully disobeying the lawful order of a commissioned officer (his supervisor) * resisting arrest by running from a roving patrol authorized to apprehend him * wrongfully violating force protection standards by exiting Mosul Airfield alone, and without the required individual body armor and kevlar helmet c. On 4 November 2003, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. (1) In his request, he affirmed he was: * able to request this discharge because charges authorizing a bad conduct or dishonorable discharge had been preferred against him under the UCMJ * making this request of his own free will and had not been subjected to any coercion whatsoever by any person; further, he had been advised of the implications attached thereto * acknowledging his guilt, or was guilty of a lesser-included offense, also authorized the imposition of a bad conduct or dishonorable discharge * stating that, under no circumstances, did he desire further rehabilitation, because he had no desire to perform further military service (2) The applicant indicated he understood, if his request was accepted, he could receive an under other than honorable conditions character of service. With this characterization, he could be deprived of many or all Army benefits, as well as those administered by VA, and under Federal or State law; in addition, he might encounter substantial prejudice in civilian life. He affirmed he could request the ADRB or ABCMR to review his discharge. (3) He acknowledged, once submitted, his request could be withdrawn only under certain circumstances outlined in AR 635-200. His counsel had advised him he could submit statements in his own behalf and that such statements could accompany his request (the form does not reflect whether he attached any statements). (4) In a separate paragraph, counsel confirmed the advice provided; counsel's statement listed the name of another Soldier, not the applicant. (5) The applicant's request did not contain any language showing the availability or authorization for an administrative separation board. d. In an undated memorandum, the separation authority indicated approval of the applicant's request by placing initials next to the appropriate paragraph; it directed the applicant's discharge under other than honorable conditions and reduced him to the lowest enlisted grade. e. The applicant redeployed from Iraq on 12 November 2003 and, on 26 November 2003, was discharged under other than honorable conditions. His DD Form 214 shows the separation authority was AR 635-200, chapter 10; the separation (SPD) code was "KFS"; and the narrative reason for separation was "In Lieu of Trial by Court-Martial." f. On 23 December 2003, he applied to the ADRB for an upgrade in character of service to honorable. On 14 December 2005, the ADRB found the length and quality of the applicant's service mitigated his misconduct, and determined the character of service was too harsh. The board granted the applicant's request for an honorable discharge, but stated the reason for discharge was both proper and equitable; the board voted no change in the narrative reason for separation. g. On 12 April 2006, the applicant petitioned the ABCMR to correct the reason for his discharge and to possibly reinstate him into the Army to complete his enlistment. On 9 November 2006, the Board indicated the applicant's request for separation under chapter 10, AR 635-200 was administratively correct and in conformance with applicable regulations. The Board denied both of the applicant's requests. h. On 31 December 2006, the applicant requested reconsideration of his previous requests; as new requests, he asked for the removal of a bar to enlistment and the rescission of his separation order so he could complete his enlistment in the AGR. On 7 August 2007, the Board determined the evidence was not sufficient to warrant a change in the reason for separation, the removal of a bar to reenlistment, or a reinstatement into the U.S. Army or the AGR program. The Board did correct the applicant's DD Form 214 so it more accurately reflected his prior active duty and inactive service. 5. Separations under AR 635-200 are administrative; by contrast, the UCMJ addresses judicial, such as courts-martial, and nonjudicial actions (i.e. punishments under Article 15). Chapter 10 of the regulation states, "a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. It further states, "the discharge request may be submitted after court-martial charges are preferred against the Soldier." * the regulation does not mandate the referral of charges to a court-martial before the Soldier can submit a discharge request * requests for discharge in-lieu of trial by court-martial are voluntary; Soldiers requesting discharge under this provision must affirm they were not coerced * while the regulation specifically identifies those provisions required to follow the notification and/or the administrative board procedures, these procedures do not apply to discharge requests under chapter 10 6. Per AR 15-185 (ABCMR), the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by the preponderance of the evidence. The Board is empowered to grant any application, in whole or in part, when there is unanimous agreement by the ABCMR panel and the relief does not involve an appointment or promotion requiring Senate confirmation. The Board forwards its recommendation to the Secretary of the Army when not authorized to act in the Secretary's behalf. 7. The regulation governing the filing of documents in a Soldier's OMPF, AR 600-8-104 (Army Military Human Resource Records Management), requires the permanent OMPF placement of documents relevant to a Soldier's enlistment; this includes the DD Form 369 and associated forms. AR 600-37 (Unfavorable Information) permits the removal of permanently filed documents from the OMPF when the Soldier provides clear and convincing proof those documents are untrue or unjust. 8. 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: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board concluded. based upon multiple incidents of misconduct with evidence that all due process rights were afforded the applicant (to include an opportunity to have an opportunity to consult with counsel on his behalf), there was insufficient cause to change the characterization of service or narrative reason of the applicant’s discharge. .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 to amend decisions of the ABCMR set forth in Docket Numbers AR20060006173, dated 9 November 2006 and AR20070000992, dated 7 August 2007. 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. AR 635-200, in effect at the time, prescribes policies and procedures for enlisted administrative separations. a. Chapter 2 (Procedures for Separation). (1) Section I (Notification Procedure). Commanders will follow the notification procedure when required by the specific separation provision; chapter 10 does not require the notification procedure. The following provisions of AR 635-200 mandate the use of the notification procedure: * chapter 5 (Separation for Convenience of the Government) * chapter 6 (Separation Because of Dependency or Hardship) * chapter 7 (Defective Enlistments/Re-enlistments and Extensions) * chapter 8 (Separation of Enlisted Women – Pregnancy) * chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) * chapter 11 (Entry Level Performance and Conduct) * chapter 13 (Separation for Unsatisfactory Performance) * chapter 14 (Separation for Misconduct) * chapter 15 (Discharge for Homosexual Conduct) * chapter 18 (Failure to Meet Weight Control Standards) (2) When using the notification procedure, the commander will advise the Soldier in writing as to: * the intent to separate him/her; the Soldier will also be informed of the specific separation provision * whether the separation will result in a release from active duty or discharge * the least favorable character of service along with what the commander will be recommending; the Soldier will be told the separation authority is not bound by his commander's recommendation * the Soldier's right to consult with military counsel, or civilian counsel at his/her own expense * being able to submit statements in their own behalf * the right to obtain copies of the documents that will be provided to the separation authority * the right to a hearing before an administrative separation board, if he/she has had 6 or more years of total active and reserve service * the ability to waive the above-stated rights (3) Section II (Administrative Board Procedure). Commanders will follow the administrative board procedure when required by the specific separation provision; chapter 10 does not require use of the administrative board procedure. As with the notification procedure, the commander will inform the Soldier in writing of the intent to separate him/her per a specific provision of the regulation; the commander will also cite the allegations that form the basis for the recommendation. The commander will advise the Soldier of his/her rights and the ability to waive those rights. When the Soldier elects to have his/her case heard by an administrative separation board, and on completion of the board proceedings, the separation authority receives the board's recommendations and takes appropriate action to either separation or retain. b. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge in lieu of trial by court-martial after the charges had been preferred. The regulation did not specifically require referral of the charges to a court- martial. * commanders were to ensure the Soldier was not coerced into submitting the request for discharge in lieu of trial by court-martial, and that he/she was given reasonable time to consult with counsel * after consulting with counsel, the Soldier signed a written request certifying he/she was counseled, understood his/her rights and that the result could be an under other than honorable conditions character of service, and that he/she understood the nature of the discharge and consequences * the written request had to include an acknowledgement that he/she understood the elements of the offenses charged and was guilty of those charges (or of a lesser-included offense); there was no requirement for using either the notification or administrative board procedures * requests were forwarded through the chain of command with recommendations and was to include any statements submitted by the Soldier; a report of medical examination and mental status evaluation was also forwarded, if conducted * commanders having discharge authority were to give consideration to the Soldier's potential for rehabilitation and review the Soldier's entire record * use of the discharge authority to approve an in-lieu of trial by court-martial request was encouraged when the commander determined the Soldier has no rehabilitative potential and the offense was sufficiently serious to warrant separation 2. The Maximum Punishment Chart in the Manual for Courts-Martial (2002 Edition) shows Articles 90 (Willfully Disobeying the Lawful Order of a Superior Commissioned Officer) and 95 (Resisting Apprehension) include dishonorable and/or bad conduct discharges as available punishments. 3. AR 635-5 (Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214. It stated, based on the specific separation authority, the source of the SPD code and narrative reason for separation was AR 635-5-1 (SPD Codes). 4. AR 635-5-1, in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the SPD code of "KFS" as being associated with separations under the provisions of chapter 10, AR 635-200; the required narrative reason for separation was "in lieu of trial by court-martial." 5. 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. 6. AR 600-37, in effect at the time, set forth policies and procedures for the authorization to place unfavorable information about Army members in individual official personnel files. a. Chapter 7 (Appeals and Petitions) provided the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. b. Paragraph 7-2 (Policies and Standards – Appeals for Removal of OMPF entries) stated that once an official document had been properly filed in the OMPF, it was presumed to be administratively correct and to had been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rested with the individual concerned to provide evidence of a clear and convincing nature that the document was untrue or unjust, in whole or in part, thus warranting its alteration or removal from the OMPF. 7. AR 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions. The regulation requires the retaining of DD Forms 369 within a Soldier's OMPF because of its association with a Soldier's enlistment. 8. 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 begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). b. The Board is empowered to grant any application, in whole or in part, when there is unanimous agreement by the ABCMR panel and the relief does not involve an appointment or promotion requiring Senate confirmation. The Board forwards its recommendation to the Secretary of the Army when not authorized to act in the Secretary's behalf. ABCMR Record of Proceedings (cont) AR20170008172 10 1