ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20170012340 APPLICANT REQUESTS: a reconsideration to his previous request for an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * DA Form 1059 (Service School Academic Evaluation Report) * 5 Certificates of Training * Copy of The Army Commendation Medal (2) * Copy of The Good Conduct Medal * Promotion Orders 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 AR20160002267on 17 March 2017. 2. The applicant states he is requesting an upgrade to his discharge so that he may return to active duty, serve his country and lead Soldiers. He misses wearing the uniform and what it stands for. His misses fighting next to his brothers in arms. He wants to be a part of making sure Soldiers are fit physically and mentally ready to defend this country. He is still physically fit and mentally prepared to serve and defend the United States of America. He is ready to return to active duty immediately. He has attached documents that outline his accomplishments during his time in the Army and would like for the Board’s consideration in making its decision. He would be honored to have another chance at serving his country and leading Soldier’s in the right direction. He also received three Good Conduct Medals during his time served. 3. The applicant provides his certificate of training, copies of his awards, showing his accomplishments, and his promotion orders, promoting him to sergeant/E-5. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 24 June 2008. His first reenlistment was on 1 May 2014 in the pay grade of specialist/E-4 and his second reenlistment was on 23 April 2015 in the pay grade of Sergeant/E-5. b. He served overseas in Afghanistan from 14 March 2010 to 3 March 2011 and again from 24 August 2012 to 1 March 2013. He also served overseas in Korea from 13 November 2014 until 21 November 2014. c. According to his DD Form 458 (Charge Sheet) dated 17 June 2015, court-martial charges were preferred against him for the following 4 specifications: * wrongfully engaging in a prohibited relationship with his Soldier, by entering her barracks room after midnight and remaining in her barracks room alone with her for approximately an hour * committing sexual contact upon the same Soldier by grabbing her buttocks, causing bodily harm to her by doing so without her consent * committing a sexual act upon the same Soldier by penetrating her vulva with his penis, causing bodily harm to her by doing so without her consent * as a married man, wrongfully have sexual intercourse with the same Soldier, a woman not his wife d. On 26 August 2015, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him. e. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood if his discharge request 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 acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf f. His record is void of the chain of commands recommendations, however, it does have the separation authority’s approval. His request for discharge was approved with a characterization of service of under other than honorable conditions discharge. g. He was discharged on 25 September 2015. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 7 years, 1 month and 18 days of net active service with no lost time. h. He was awarded or authorized: * Afghanistan Campaign Medal with 2 Campaign Stars * Army Commendation Medal (3rd Award) * Army Achievement Medal * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Non-Commissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation, a soldier who has committed an offense or offenses, the punishment for which under the Uniform Code of Military Justice (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. 7. 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 serious, criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. 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. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. 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. 2. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provides that 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. b. Paragraph 3-7b (General) provides that 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. A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 10 of that regulation provides, in pertinent part, a soldier who has committed an offense or offenses, the punishment for which under the Uniform Code of Military Justice (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. The provisions of RCM 1003(d), MCM 2002 do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court-martial charges are preferred against the soldier or, where required, after referral, until final action by the court-martial convening authority. 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 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) AR20170012340 5 1