ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: 20170017532 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DD Form 214 (Certificate of Release or Discharge from Active Duty) • Army Awards • Certificate of Achievement • Honorable Discharges • Letters of Congratulations • Medical Records 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: a. He entered the military in 1981 and served honorably for 15 years. In his 16th year, while serving as a senior drill sergeant, he initiated paperwork to court-martial of one of his drill sergants for fraternization with two trainees (advance individual training Soldiers) and fathering children with both females. b. In addition, he had to testify against the drill sergeant and at his court-martial trial he was subsequently found guilty of the previously specified allegations. The drill sergeant was discharged and further had both junior enlisted females write letters falsely accusing him of assault and adultery in which they forwarded to the chain of command. c. The two junior enlisted females were offered immunity for their sworn statements against him and they also called his residence to tell his spouse that he had committed assault and adultery. The former drill sergeant called his spouse to corroborate the two female’s stories and these phone calls to his spouse began to put a strain on their marriage. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 8 September 1981 and held the rank/grade of sergeant first class/E-7. He also served on drill sergeant duty from 1994 to 1996. b. Court-martial charges were preferred against him on 26 January 1996. His DD Form 458 (Charge Sheet) indicates he was charge with four specifications of wrongfully having sexual intercourse with a woman not his wife. c. Subsequent to legal counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). He acknowledged: • maximum punishment • he was guilty of the charge against him of a lesser included offense therein contained which also authorizes the imposition of a bad conduct discharge or dishonorable discharge • he did not desire further rehabilitation or a desire to perform further military service • he understood if his discharge was accepted he could be separated with an under than honorable conditions discharge and furnished an Undesirable Discharge Certificate • he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the VA and benefits of a Veteran under Federal and State law d. Consistent with the chain of command recommendations and following a legal review for legal sufficiency, on 11 July 1997, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Honorable Conditions Discharge Certificate. e. On 23 July 1997, he was discharged from active duty. His DD Form 214 shows he was discharged under the provisions of chapter AR 635-200, chapter 10. He completed 15 years, 10 months, and 16 days of active service and was awarded or authorized the following: • Army Commendation Medal • Army Achievement Medal • Army Good Conduct Medal • National Defense Service Medal • Army Service Ribbon • Overseas Service Ribbon • Sharpshooter Marksmanship Qualification Badge • Noncommissioned Officer’s Professional Development Ribbon 4. By regulation (AR 635-200), a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 5. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the seriousness of the misconduct which led to the discharge, as well as a lack of character evidence showing he has learned and grown from thosee events, the Board concluded that the characterization of service received at the time of discharge was appropriate. 2. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. Microsoft Office Signature Line... 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a of the regulation currently in effect 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. c. Paragraph 3-7b of the regulation currently in effect 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. 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.