ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170018795 APPLICANT REQUESTS: * an upgrade of his discharge from general to honorable * change of narrative reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-written statement * Licensed Clinical Social Worker letter * Email statement from his step-son 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 is requesting that charges in this matter be expunged and removed from my DD Form 214 (Certificate of Release or Discharge from Active Duty). As of right now both the discharge characterization and reason for separation caused his last employer to have reason to terminate his employment due to a new contract with a Juvenile Detention Facility. The discharge and reason for separation are presently hindering him from obtaining future employment. b. During his service in the Army he served honorably and always exceeded expectations. He was awarded many medals and won many Soldier of the Quarter/Year and NCO of the Quarter/Year. c. His wife decided to have an affair with another military person and to get him out of the picture decided to make false accusations against him so that he would be removed from the family and she could take advantage of military services. He was accused of showing pornographic photos to his children from his computer. He did not do this. His chain of command and legal counsel recommended that he plead no contest to the charges because of the difficulty of proving his innocence for this accusation in a court-martial proceeding. d. His commander recommended that he take a separation which was "General, Under Honorable Conditions" and that he go into the civilian sector for a couple of years and submit to have it changed. He obtained a great job and married another woman and raised a child since then. He now has 4 grandchildren and he is a great grandparent and husband. He has also spoken to the children from his first marriage about this and they admit that their mom had coerced them into doing her bidding for fear of punishment. He is a good person and would have never done what he was accused of to his children. Please consider approving his request. 3. On 8 November 1990, the applicant enlisted in the Regular Army. 4. A review of his records revealed that he was absent without leave from 16 to 22 September 1991. 5. In and 1997, Criminal Investigation Command (CID) Reports show in part: a. The applicant’s wife alleged that he had shown pornographic material from his computer to his adopted son. A preliminary investigation revealed that on numerous occasions the applicant called his adopted son, TC, age 15, into the kitchen to view pornographic images on his personal computer. A search authorization was obtained and the personal computer was subsequently seized as evidence. A brief inspection of the computer noted numerous pictures depicting various acts of sexual intercourse; to include both anal and oral acts. The applicant was advised of his legal rights which he invoked, requesting legal counsel. b. During the interview of TC, he also alleged that the applicant showed him pictures of child pornography and bestiality on the computer. The initial inspection of the computer did not discover any of these photographs; however, the computer was forwarded to another agency for further examination. c. Three other minor children (1 female) were interviewed and provided sworn statements wherein they stated the applicant showed them images of a female performing oral sex on a canine, females engaging in sexual acts with other females, males engaging in sex acts with animals, and other pornographic material. 6. On 1997, he was medically cleared for administrative separation. A mental status evaluation shows he was psychiatrically cleared for administrative action as deemed appropriate by his command. 7. On 24 July 1997, the applicant accepted non-judicial punishment for displaying lewd, prurient, and pornographic material, with the intent to arouse, appeal to, and/or gratify the lust, passion, and/or sexual desires of himself and/or 4 minor children. As part of his punishment he was reduced to the rank/grade of specialist/E-4. He elected not to appeal. 8. On the same date, he was notified of his commander’s intent to initiate separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (commission of a serious offense), by reason of showing pornographic material to 4 minor children. a. The commander advised him of his available rights, to include his right to consult with counsel. The applicant acknowledged receipt of the separation notification memorandum. b. The applicant consulted with counsel and was advised of the basis for the contemplated action to separate him and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a character of service no less than a general, under honorable conditions. c. The applicant acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a “general” discharge was issued to him. He elected to submit statements in his own behalf and stated in part: * he knew deep in his heart that what happened was wrong * he is not a bad person and he made a mistake * he had no intention of sexually abusing or harming anyone * he admits that he is a terrible * he is not a child molester * him and his wife were experiencing marital problems; they had discussed divorce * he asked God to forgive him d. His chain of command recommended he be eliminated from further military service. The appropriate separation authority approved the separation with a general, under honorable conditions characterization of service. 9. On 12 September 1997, he was discharged accordingly. He completed 6 years, 10 months, and 5 days of net active service. The applicant was assigned a Separation Code of JKQ and discharge for misconduct. He was awarded or authorized the: * Army Commendation Medal * Army Achievement Medal (6th award) * Army Good Conduct Medal * National Defense Service Medal * Noncommissioned Officer’s Professional Development Ribbon * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 10. In support of his case, the applicant provided: a. A letter from a licensed clinical social worker (LCSW) stating in part that, the applicant has been his patient for the past couple of years. The applicant has extensively processed and explained how this charge was part of a custody divorce proceeding involving his ex-wife that he was not guilty of, but contesting the charges would not likely have been fruitful, so he plead "no-contest" in order to move forward at that time. This is something that he both regrets and understands. The LCSW believes that this does not accurately represent the situation which he too often sees in many similar cases of actual guilt. The applicant has been very honest and open about his past. He believes the charges do not have merit and should be expunged from the applicant’s record. b. An email from one of the victims (his stepson) that states when he was a young man in his early teen years his mother VC was married to the applicant (his stepfather). His mother asked him if his stepfather had shown him anything adult or inappropriate. He told her that he did not but she was not hearing it. Then, out of the blue, strange men came and interviewed him. They kept telling him that he was safe and that he was not to lie to them. They kept insisting this no matter what he said. Eventually, out of confusion, distress, and constant prodding he finally said something to their liking but it didn't feel right. He felt coerced into it and did not know what was going on. He was taken advantage of by both his mother and the men that interviewed him. He apologizes for any harm that has come to his stepfather and deeply regrets what happened. 11. The record contains no indication of procedural or other errors that would tend to jeopardize the applicant’s rights. 12. Army Regulation 635-200, chapter 14 provided for separation due to misconduct (commission of a serious offense). It also provided that: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. 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. 13. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) identifies SPD code JKQ as the appropriate code to assign to enlisted Soldiers involuntarily released under the provisions of AR 635-200, paragraph 14-12c, based on a misconduct, commission of a serious offense. 14. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and letters of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. The separation code he was provided appropriately coincides with his 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 635-5-1 (Separation Program Designator (SPD) Codes) lists the specific authorities and reasons for separating Soldiers from active duty and the corresponding SPD codes to be entered on the DD Form 214. It identifies SPD code JKQ as the appropriate code to assign to enlisted Soldiers involuntarily released under the provisions of Army Regulation 635-200, paragraph 14-12c, based on a misconduct, commission of a serious offense. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 14-12c (commission of a serious offense) states a Soldier is subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts- Martial. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. 4. 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018795 7 1