ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170015020 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20100026428 on 7 June 2011. Specifically, he requests his bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 7 August 2017, with self-authored statement dated 11 July 2017 * DD Form 214 (Certificate of Release or Discharge From Active Duty), for the period ending 9 May 1997 * Henry Ford Community College transcript, dated 12 August 2012, and Associate’s Degree Certificate, dated 13 August 2012 * four character reference letters; dated 22 March 2017; 10 April 2017; 17 May 2017; and one undated * Redford, Michigan, Police Department letter, dated 25 May 2017 * Disabled American Veterans (DAV), National Service Officer letter in support of application, dated 23 August 2017 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100026428 on 7 June 2011. 2. As a new argument, the applicant states in effect: a. The signing officer indicated in block #22 [of his DD Form 214] that he was not present to sign. The date is in conflict with his actual release date of 5 June 1995; the form indicates he was released on or about 15 May 1997 but at that time he was employed as a civilian in. These errors or purposeful inaccuracies on his DD Form 214 further support his belief that leadership at his unit railroaded and 1 sabotaged his military career, leading to his special court-martial and ultimately his discharge after 12 years of honorable service. b. He entered the Army following graduation from high school in 1983. He made a mental and physical commitment to being a career Solider. He bought into the concept of the Army, being strong and self-discipline as the foundation for any good Soldier. This approach served him well as he progressed in rank from private to staff sergeant (SSG). During his initial enlistment, he had many strong examples of what it took to make a good Soldier. He clearly understood the final goal was mission accomplishment and teamwork. c. As his career progressed, he emulated the can-do spirit and teamwork concepts modeled by his seniors. He strove to perform at the highest level in conduct and proficiency. As a basic Soldier, his physical fitness was always first class, his skills with basic weaponry was consistently expert with the .45 caliber pistol, M-16 rifle, and hand grenade. During his career, he accepted the challenge of enhancing his opportunity to grow and become a model Soldier, by attending career enhancing education such as the Basic Noncommissioned Officers (NCO) Course (BNCOC), Primary Leadership Development Course (PLDC) and the Army Pre-Commission Course. Some of these accomplishments were rewarded by the issuance of professional development ribbons. d. He served more than thirteen years and had many highlight moments ranging from attaining the rank of specialist four up to SSG. He was equally proud to earn medals such as the Army Good Conduct Medal (3rd Award). This medal carried much value to him because it validated his living up to the basic army principles of self- discipline, accountability, and Army ready. These ribbons and awards validated his decision to become a Soldier. e. His career was halted in 1997, following a series of complaints and charges against him by subordinates. He didn't agree with the complaints and charges then, and doesn't agree with them today. These charges and complaints were in total contradiction to everything he learned and practiced over his career. After transferring to Fort Bragg, he re-enlisted and was assigned to 659th Maintenance Company, Inspection Section. Approximately 1 year into his assignment, he was notified that his work ethic and leadership skills were needed in 3rd shop. This was a billet filled by a sergeant first class (SFC) who failed to get the unit operating at a satisfactory level. After getting verbally informed about the reassignment, he was immediately placed in the 3rd shop to begin leading, without a briefing about the Soldiers or work-related issues that caused the shop to not meet its mission. f. His initial approach was to observe the Soldiers to determine work habits and proficiency levels. It became apparent that most of the problems centered on Soldiers not knowing their jobs, and not being dedicated. His goal was to get them on board with turning this failing shop into a model the Army could offer as a proto-type for other shops. To accomplish this, he was required to lead by example and teach along the way. He got his hands dirty, working side by side with his Soldiers until the shop started showing improvement. g. Because of his driving production, a female Soldier took exception to his approach and went to the first sergeant (1SG) and reported him for sexually harassing her. He expected all his Soldiers to pull their weight and do your job, so everyone succeeded. Her report of sexual harassment lead to an investigating that concluded in his favor. During the investigation, the reporting Soldier was removed from the shop while he continued to operate as the shop leader. Although the investigation concluded in his favor, this was the first time during his career he was subjected to any disciplinary action. This experience bothered him; the post commander told him to "pull up his socks and drive forward." From his perspective, he did nothing wrong and this validated his belief. The great surprise was the Soldier who filed the report was brought back into the shop and placed back under his charge. She was subsequently written up by one of the unit sergeants for refusing to perform her assigned duties, because she didn't want to mess up her hair and nails. According to her complaint, he had her written up and she perceived this as sexual harassment. She went to the 1SG, and filed a report, leading to another investigation. However, her write up for failure to perform her assigned duties occurred while he was in the field conducting additional duties. h. Due to this new complaint and investigation, he was reassigned to another unit. He requested a unit of his choice; specifically, a 3rd shop on the airborne side of post. This request was denied by the company commander. Once the request was denied, he requested leave. Upon returning from leave, he reported to his 1SG. During their meeting, he asked why he was being moved to a 63B slot opposed to 63H. The 1SG's response was, "it's not his call, these are orders from the company commander!" i. After getting his orders, he reported to the new unit. During his initial briefing, the company commander made it clear that they were aware of the incidents at his previous unit. He didn't react one way or another but felt like he was being placed on some type of unwarranted notice. He had already served over 13 years of exemplary service and now was being bounced around and treated like a throwaway soldier. After being falsely accused of things he didn't do, this felt like a set up for his downfall. j. After being at his new assignment for a month, the company was preparing to deploy to Haiti. He was escorting another Soldier around to process out of the Army. While escorting this Soldier, he also had to prepare the unit vehicles for deployment. He completed the job, through many obstacles. Most of this work fell on his shoulders, because the two female Soldiers didn't know anything about vehicle maintenance due to a lack of training. As he was preparing his Soldiers for deployment, he met a supply sergeant who stated "I heard everything about you!" It required much self-restraint to withhold asking her what she meant by her statement. He shared his experience with the 1SG who ensured him he would have a counseling session with her regarding the comments. k. As he continued to prepare for the upcoming deployment, he issued orders for the Soldiers to report to the motor pool to commence vehicle maintenance. The next day while preparing for duty, he received notice to report to the company commander. Upon reporting to her tent, he was informed that two Soldiers were filing charges against him for sexual harassment. An immediate investigation took place, only to conclude there was no validity to the complaint. Although the investigation didn't warrant further action, the company commander wanted to give him an Article 15, which he adamantly opposed because he hadn't done anything wrong. He soon learned that he had been flagged prior to reporting to the unit. By chance, she and his previous commanding officer were best of friends and she didn't like him. His goal of earning the rank of SFC was being dashed before his eyes, and it appeared there was nothing he could do to stop this witch hunt. He used his chain of command and approached his 1SG about what was going on and was told "he didn't know what was happening." He found that to be an untrue statement coming from a career 1SG. How was it, possible for him to not know what was going on? This solidified his belief that he was being set- up when he was assigned to that unit. He received an Article 15 the following week while the unit was in the field. l. After the unit redeployed from Haiti, they went back to Fort Bragg, where another investigation was started. After a month, he was informed to report to the base legal office to see an attorney who was appointed to represent him. He asked the assigned attorney if he knew what was going on and he seemed ill informed but yet, he was assigned to represent him. They started to make up various charges against him, such as failure to maintain control of the unit flags at the chapel. It was reported that another Soldier, saw someone placing the flags into a personal vehicle after chapel service. Further, he was charged with leaving his post too early while functioning as a road guard and finally, he was accused of assault by a sergeant who returned from non- commission officer school. None of the accusations stuck during his court martial. During his court martial, there was little to no presentation from either side about the previous mentioned charges, only the sexual harassment and mistreatment. m. In closing, he was reduced in rank, had his pay deducted, and was given a bad conduct discharge for false accusations. All of his years of being a Soldier through and through, and the result was his dreams were dashed in one short year. 3. The applicant enlisted in the Regular Army on 12 May 1983, served honorably through several periods of reenlistment, and attained the rank of SSG. He was awarded or authorized the Army Commendation Medal, Army Achievement Medal (2nd Oak Leaf Cluster [3rd Award]), Army Good Conduct Medal (3rd Award), NCO Professional Development Ribbon (Primary Level) and (Basic Level), Army Service Ribbon, and the Overseas Service Ribbon (2nd Award). 4. Before a special court-martial on or about 10 March 1995, at Fort Bragg, NC, the applicant was convicted of eight specifications of maltreatment of subordinates and one specification of striking an NCO, on or about 14 December 1994. His sentenced included his reduction to the rank/grade of private/E-1 and separation from service with a BCD. The sentence was approved on 5 June 1995 and, except for the portion of the sentence extending to a BCD, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 5. The applicant was placed on involuntary excess leave on 6 June 1995, without pay and allowances, pending completion of the appellate review. 6. Special Court-Martial Order Number 19, issued by the Headquarters, XVIII Airborne Corps and Fort Bragg on 12 September 1996, noted that the applicant's sentence had finally been affirmed and ordered the applicant's BCD duly executed. 7. The applicant was discharged on 9 May 1997, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 3, as the results of a court-martial sentence. His service was characterized as bad conduct. He was credited with completing 13 years, 11 months, and 28 days of creditable active service. 8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 9. The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. The ADRB considered his request on 11 August 2010 but found no cause for clemency and therefore voted to deny relief. 10. The applicant provides: a. A copy of his college transcript and his Associates Degree diploma. b. Four reference letters attesting that he was a committed student who eagerly applied himself and was willing to embrace new concepts and technologies; he possessed a strong work ethic, was punctual, thorough with tasks, highly effective in a team environment, punctual, and dedicated; he was a good decision maker and responsible for his actions; he exemplified integrity, dignity, and respect; he possessed a will to win and attention to detail; he was an active volunteer and mentor at a homeless shelter. c. A Police Department letter that shows he did not have an arrest record. d. A DAV, National Service Officer, letter of support for his application. 11. The Board should consider the applicant's statement, and the entirety of his record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. 2. The applicant contended that there was procedural error because his DD Form 214 shows that he was not present to sign the DD Form 214 on 14 May 1997 and that the separation date of 9 May 1997 on his DD Form 214 is in conflict with his actual release date of 5 June 1995. The applicant contends he was in civilian employment on 9 May 1997. However, the records show that following his court-martial, he was placed on involuntary excess leave on 5 June 1995 pending appellate review of hits bad conduct discharge. The U. S. Army Court of Appeals affirmed the court-martial findings and sentence finding no legal or procedural error. Accordingly, on 12 September 1996, the BCD was ordered to be issued, separation in absentia directed since the applicant had left the Fayetteville area while he was on involuntary leave, discharge orders issued on 6 May 1997 with an effective date of 9 May 1997, and the DD Form 214 was issued and signed on 14 May 1997 at Fort Knox while the applicant was on involuntary leave in Michigan. There is no error or injustice in this process. 3. The Board noted that the applicant had benefit of a court-martial, was represented by counsel, presented evidence and argument in his own behalf, and was afforded due process. 4. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The board considered the applicant’s post-service evidence but did not find it sufficient to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 5. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 10/19/2020 X CHAIRPERSON 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a 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 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 3-7b 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. c. Chapter 3 section IV (3-11) provided that a Soldier would be given a BCD 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. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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. //NOTHING FOLLOWS//