ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170011777 APPLICANT REQUESTS: a change of the narrative reason for separation and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review Discharge from the Armed Forces of the United States) * Self-Authored Statement * State of Ohio Board Review and Transcripts * Army Discharge Review Board (ADRB) * New Evidence FACTS: 1. The applicant states he has set before the ADRB and a partial relief was given but the separation reason did not change. a. The discovery of new evidence found in 2016 was not shown to the ADRB on 19 October 2009. The evidence will show fraud or collation per Army Regulation (AR) 135-178 (Enlisted Administrative Separations: Army National Guard (ARNG) and Army Reserve (USAR)), chapter 3-19 (6). He waited for the reenlistment regulation to change, but it has not changed and he is innocent of the charge. b. The chief of staff of Ohio Army National Guard (OHARNG) at the time is now The Adjutant General (TAG) of the state of Ohio and was the point of contact for the case and was present at an evidence hearing. On the night of the board on 19 March 2008, he (the applicant) was accused of sexual assault on the same recruit he was at the board for. TAG at the time did not follow up, but used the excuse that the Soldier did not want to press charges. Although the fabricated evidence did not substantiate the accusation, TAG found the need to include it in his memorandum to the Secretary of the Army on his last ADRB. Two of the sergeants major XX and XX and Colonel XX are retired and holding respected jobs and Colonel X. is the Director for the Ohio Veteran Affairs. These three threatened other Soldiers to write stuff, fabricate evidence and simply made stuff up. The female Soldier he was accused of having a relationship with is now a lieutenant at Fort Rucker. He knows for a fact and has proof she was made to write statements and threats, but on the night of 19 March 2008, she went along with the tail and the setup of him, all of this is in the separation board transcripts. c. He would like the opportunity to present new and some old evidence that ties it all together. A year and half ago one of the sergeants major retired leaving his computer hard drive behind and he has the hard drive. The hard drive contains emails and a sworn statement that was taken by his own legal counsel, but never presented. All evidence will show a one-sided investigation driven towards him and done while he was out of the country. There were photos added to his government cell phone, blacked out sworn statements, things added to statements and all of this is also in the separation board transcript. 3. The applicant provided: a. Self-authored statement that states that he was accused of something he did not do. He was accused of having a relationship with a 17 year old recruit and taking photos of her in his office. Eight months later he was accused of sexual assault with the same Soldier. The Soldier’s name was XXX. He was relieved of his duties on 2 July 2007, and was told to stay home and to have no contact with anyone in the military. He was ordered to report on 31 July 2007 to Headquarters, OHARNG, Columbus, OH. He was presented paperwork to sign stating that he was signing and taking a reduction to E-5. He was told the investigation was done when he was out of the country. He refused to sign and asked for a lawyer. b. The State of Ohio transcripts and Board Review with ADRB findings and recommendation to the State of Ohio that determined that partial relief was warranted. c. New evidences found by the applicant and provided shows emails found on First Sergeant (1SG) X____ hard drive from 19 June 2007 to 12 July 2007 that could possible show that he was set-up. 4. A review of the applicant’s service record shows: a. Having had prior service in the Regular Army, he enlisted in the OHARNG on 15 December 1999. b. On 15 February 2001, he was ordered to full time National Guard in the Active Guard Reserve (AGR) status and was assigned to Detachment 4, Headquarters, Recruiting Command, Columbus, OH for his initial AGR tour, a 3 year active duty commitment, that was extended by 6 years from 15 February 2004 to 14 February 2010. c. His military personnel records is void of specific facts and circumstances concerning the events that led to his discharge from the OHARNG. d. The applicant was discharged from the ARNG on 16 April 2008. His NGB Form 22 shows that he was discharged under the provision of National Guard Regulation 600-200 for acts of patterns of misconduct, paragraph 8-35i(1). He completed 8 years, 4 months, and 2 days this period. It also shows: • Item 5a: PV1 • Item bb: E-1 • Item 6: 2008 04 13 • Item 24: other than honorable • Item 25: N/A item 26: RE-4 e. On 20 February 2009, the applicant submitted an application and requested an upgrade to his under other than honorable conditions discharge and that the reason for the discharge be changed. f. The applicant appeared before the Board on 19 October 2009. g. The ADRB by memorandum to the Chief, National Guard Readiness Center (NGRC), Arlington, VA on 15 March 2010 determined that partial relief was warranted. The memorandum included the findings and recommendation of the ADRB in this case to the NGRC, Arlington, VA. h. On 25 March 2010, the NGB by memorandum to TAG Enlisted Personnel, Columbus, OH provided them the final determination of the ADRB proceedings and informed them that the ADRB proceedings be implemented, by issuing a new NGB Form 22 (Report of Separation and Record of Service) reflecting characterization of discharge as general, under honorable conditions, restoration of grade to sergeant first class E-7 and reenlistment (RE) code 3. i. On 7 May 2010, the ADRB by memorandum to the NGRC, Arlington, VA provided the video recording of the applicant’s testimony and document the applicant submitted to support his application for a change to the character and/or reason of the discharge received from the OHARNG in April 2008. The ADRB determined that the applicant’s discharge was proper however, based on DODI 1332.29 para E4.3, found the character of the discharge inequitable and recommended the discharge characterization be changed to general, under honorable conditions. j. The issues were noted however, the applicant was not subjected to any non-judicial proceedings/punishment or court-martial proceedings. The ADRB does not contest the applicant’s misconduct but considered it, and based on the tenets of reference b., para E4.3, determined the characterization of the discharge was too harsh. The ADRB noted the alleged sexual assault during the State of Ohio National Guard administrative separation review board (ASRB) in March 2008; however, the State of Ohio National Guard did not stop and pursue and investigation when the incident came to light partway through the proceedings. k. Additionally, this alleged assault was not the reason for the ASRB. The introduction of the new evidence during an administrative separation board hearing would require proper notification of the Soldier being separated. There is no evidence the applicant was properly notified the new allegation of sexual assault would be considered during his ASRB. l. The State of Ohio, AG’s Department, Columbus, OH, by memorandum to ADRB on 17 August 2010 stated that they have been informed that the ADRB was completely aware of the record of the administrative discharge board conducted at this headquarters when it reviewed the applicant’s case. For that reason, the State of Ohio is not enclosing a copy of the transcript of the testimony in the hearing. While it is not a matter of record, the ADRB should know that the applicant declined to resign his tour of full-time National Guard Duty and asserted his innocence throughout the discharge board here and before the ADRB. The case presented by the applicant to the ADRB depended largely on supposition, innuendo, and evidence either not presented to the board or that it heard and found unpersuasive. Below the addressed the irregularities addressed by ADRB and the allegation that the applicant was mistreated in this process. m. TAG explains the applicant’s actions during the board hearing. The ADRB advised that the applicant was unfairly surprised by the evidence of his conduct between board sessions admitted by the board. The transcript of the discharge board reflects that despite a no contact order, the applicant, while the board action was pending met with the Soldier with whom he had already denied a sexual relationship and according to her unrefuted testimony, sexually molested her in her hotel room after plying her, a minor, with alcohol. The transcript also reflects that this evidence was admitted, as his legal counsel informs him it would have been by any court in the country, only to rebut the applicant’s testimony that he had no unprofessional relationship with the Soldier. The applicant also complained, and the board stated, that this should have been the subject of a criminal investigation. TAG states that he can document that he requested that such an investigation be conducted since this incident took place at a civilian hotel and he doesn’t control criminal investigation division or the military police investigators. Unfortunately, the Soldier declined to assist criminal investigators, in part because she feared that she would not be permitted to join her deployed unit if she did so (the witness testified enroute between Fort Hood and rejoining her unit in theatre). n. The meeting with the applicant and TAG. The applicant stated that TAG called him down after his discharge to meet with him to discuss his situation. The applicant requested this meeting. He was told in advance that TAG would not retry the board proceeding. He nevertheless tried to do just that, so TAG terminated the meeting. The applicant’s version of this meeting like much of his testimony, is simply untrue. o. TAG acknowledges the mistakes made in not serving the applicant with the board record and in not entering the record into his file. However, TAG declined to give the applicant ARNG relief and frankly outraged by the decision to afford the applicant Reserve of the Army/Army National Guard relief. TAG requested that the ADRB be directed to reconsider the entire record with appropriate submissions from the (this) State of Ohio headquarters. Should the ADRB not see fit to alter its decision and should the applicant sue the State of Ohio using the ADRB decision as a sword, the AG will ask the Attorney General of Ohio to take appropriate steps to require the Army to defend its indefensible decision in the applicant’s case. p. On 10 November 2010, the ADRB by memorandum to the NGB stated that the applicant appeared before the ADRB on 19 October 2009. The board requested and considered additional information from the OHARNG before rendering its decision on 2 March 2010. A review of the board’s proceedings does not indicate any inconsistencies with applicable regulations and statutes or that the Board acted outside of its authority. There is no authority to reopen the Board’s consideration; therefore, the ADRB cannot grant TAG’s request for reconsideration. q. On 16 November 2010, the ADRB found that the character of discharge on the DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 16 April 2008 inequitable. The ADRB voted to upgrade his characterization of service to general and restore his former grade. r. On 16 November 2010, he was issued a DD Form 215 (Correction to DD Form 214) that amended his DD Form 214 ending on 16 April 2008 as follows: * Item 4a: SFC * Item 4b: E-7 * Item 12h: 2002 11 06 * Item 24: General (under honorable conditions) * Item 27: RE-3 s. On 17 November 2010, the NGB also issued an NGB Form 22A (Correction to NGB Form 22) to change the following items to read: • Item 5a: SFC • Item 5b: E-7 • Item 6: 2002 11 06 • Item 24: General (under honorable conditions) • Item 25: 56 * item 26: RE-3 5. By Law, DODI 1332.29 instruction implements legislative changes to Title 10, United States Code and updates policy, procedures, and responsibilities for determining eligibility for separation pay for Regular and Reserve members who are involuntarily separated from active duty (AD). 6. By Army regulation (AR 135-178 (Enlisted Administrative Separations: Army National Guard and Army Reserve) if the separation authority determines, based on newly discovered evidence that the findings of the first board were obtained by fraud or collusion, the case may be referred to a new board. 7. By NGB regulation (NGR 600-200), ARNG Soldiers may be separated for acts or patterns of misconduct. Service may, but is not required to be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons. The State Adjutant General will direct reduction in grade to PV1 when the Soldier is discharged under other than honorable conditions 8. By Army regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 9. 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, the Board determined that they could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined that relief was not warranted. Based upon the review of the documentary evidence submitted by the applicant and found within the military service record, the Board concluded that the DD Form 214 accurately depicts the facts and circumstances leading to the discharge and that there was no error or injustice which would warrant making a change to the narrative reason for separation. 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. 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. By Law, DODI 1332.29 instruction implements legislative changes to Title 10, United States Code and updates policy, procedures, and responsibilities for determining eligibility for separation pay for Regular and Reserve members who are involuntarily separated from active duty. 3. Army Regulation 635-200, Personnel Separations sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 member’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 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. c. Chapter 14 -12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 4. Army Regulation 135-178 (Enlisted Administrative Separations: Army National Guard and Army Reserve), sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers. Chapter 3-18, action by separation authority on board recommendations states, if the Separation Authority determines, based on newly discovered evidence that the findings of the first board were obtained by fraud or collusion, the case may be referred to a new board. The fraud or collusion, which serves as the basis for referral to a new board, must be based on newly discovered evidence which was unknown at the time of the original proceedings. No member of the new board may have been a member of the first board. The separation authority may not approve findings and approve recommendations less favorable to the Soldier than those rendered by the first board unless the separation authority finds that the newly discovered evidence of fraud or collusion in the first board is attributable to the Soldier or an individual acting on the Soldier’s behalf. 5. National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the Army National Guard enlisted Soldiers in the functional areas of: classification and reclassification, personnel management, assignment and transfer, including interstate transfer, special duty assignment pay, enlisted separations, and command sergeant major program. a. Paragraph 6-8a states an 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: an honorable characterization may only be awarded a Soldier upon completion of his or her service obligation, or where required under specific reasons for separation, unless an uncharacterized description is warranted, or when a Soldier is discharged before expiration of the service obligation for a reason for which an honorable characterization is discretionary., the following considerations apply: where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s), a Soldier will not necessarily be denied an honorable characterization solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15, conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable characterization of service, an honorable characterization may be awarded when disqualifying entries in the Soldier’s military record are outweighed by subsequent honorable and faithful service over a greater period of time during the current term of service, it is a pattern of behavior and not an isolated instance that should be considered the governing factor in determining the character of service or unless otherwise ineligible, a Soldier may receive an honorable characterization of service if he or she has, during his or her current enlistment, or any extension thereof, received a personal decoration. b. Paragraph 6-8b states if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the Soldier’s conduct or performance of duty outweighs positive aspects of the Soldier’s military record. 6. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. 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. ABCMR Record of Proceedings (cont) AR20170011777 7 1