ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170018877 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States ) * Self-Authored Statement * Biographical Sketch * Memorandum to Commanding General (CG) * Court Order Dismissing the Case * Rebuttal of Initiation of Officer Elimination * Narrative of Assault Case * Letter form Public Safety Official to Supporting Staff * Officer Safety Card * Portion of the Arrest Record * Newspaper Clippings * Evidence Sketches/Photographs * Portion of Police Report * Pepper Spray Research Documents * Court Case Documents * Resignation in Lieu of Elimination Memorandum * Initiation of Officer Elimination Notification Memorandum * Chain of Command Request for Show Cause * Court Case Excerpt * Supplemental Police Report * Military Police Report * National Crime Information Center (NCIC) Check * Spousal Letter to Leadership * Spousal Letter to Applicant * Report of Mental Status Evaluation (DA Form 3822) * Fort Lewis Regulation 190-11 * DA Form 268 (Report to Suspend Favorable Action) * Officer Record Brief (ORB) * Officer Evaluation Report (8) * Noncommissioned Officer Evaluation Report (3) * Service School Academic Evaluation Report (DA Form 1059)(4) * Army Certificates of Training (7) * Army Awards (9) * Individual Jump Records (DA Form 1307)(3) * Neurology Report * Excerpt from Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) * Excerpt from AR 40-501(Standards of Fitness) * Excerpts from AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) * Excerpt from Department of Defense Instructions (DODI)1332.38 (Physical Disability Evaluation) * Information Paper on Physical Disability valuation System * Sleep Disorders Research 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, that his discharge was inequitable because it was based in great part on civilian charges that were dismissed on 11 June 2002. The nature of his plea to civilian charges was misconstrued by the Staff Judge Advocate (SJA) to the CG, I Corps in the Initiation of Officer Elimination (elimination packet) stating that he plead guilty to the civilian charges and sentencing was delayed when in fact the finding was deferred and would be dismissed upon review in 6 to 9 months. This is supported by court documents, and the chain of command recommended the discharge be general under honorable conditions. They were aware of his Exceptional Family Member problems well before adverse action was initiated. He was orally counseled by his senior rater, Lieutenant Colonel X___ that he had knowledge that if he got rid of the problem wife all would be forgiven. He failed to register his firearms on post, which he addresses and believes one offense does not rise to the level of elimination. The other offenses alleged in the elimination packet that took place on or about 27 January 2002 never reached prosecution, so those allegations should have carried no weight in his elimination proceeding. There are letters from his spouse where she explains her problems, the impacts of these problems and states that she was at fault and he believes exonerates him of abuse, that he don't believe were considered by the separation authority. He believes his side of the story was never available to the separation authority. He states that he suffers from a medical condition, severe sleep apnea, which by regulations require a medical evaluation board (MEB) and medical retirement. The regulations stipulate that this boardable condition and findings are to be forwarded to separation authority with the elimination proceedings. He believes this condition had great physiological and psychological impact on all these incidents and have attached expert documentation detailing the impairments of this condition. He believes his service has been solid performance without any negative issues up until and after he was accused of abuse. 3. The applicant provides: a. Self-Authored Statement, dated 24 August 2002, which states that when he was notified of his elimination as under other than honorable, he felt it went against the recommendations of his leadership. He states his years of service were solid and without negative incidents until recently. This characterization has far reaching impacts on the morale and good faith of service members that deserve and believe that they will receive moral and ethical consideration from their leadership. He was informed by Mr. X___ of the Legal Office of the Army Review Board Agency (ARBA), Headquarters Department of the Army (HQDA), that the Assistant Secretary of the Army that made the decision to characterize my service must "set the standard across the entire Army" and that "officer's that argue with police, get maced and have unregistered firearms on an installation will get other than honorable discharges." This is not a case by case evaluation as it should be. A standard is being set for characterization of service for an offense with no regard to the fact that no two cases are the same. He believes the process of the ARBA board is ad hoc at best, when explained how the boards work. He also states that he was told the decision was a verbal decision and no written documentation was processed in the proceedings. He was informed that all information was forwarded to the board for consideration, but feels that his rebuttal did not matter in the decision making process. He supplied evidence to impeach the credibility of the arresting officer, but no credence was given. He submitted a resignation in lieu of elimination to avoid subjecting his family to further indignity. He believes his 16 years of service should not have been characterized as under other than honorable, because it has severe repercussions, and he lost discharge benefits, and may not be able to receive veterans benefits. b. Biographical Sketch, undated, which provides a biographical background of the applicant from birth to taking over his family farm and quitting the farming business. He now works as a volunteer at the Veterans Affairs Northern Indiana Health Care System. c. Memorandum to Commanding General, dated 12 June 2002., which states all charges against the applicant have been dropped. d. Court Order Dismissing the Case, dated 11 June 2002; Narrative of Assault Case, undated; Letter form Public Safety Official to Supporting Staff, dated 3 January 2001; Officer Safety Card, undated; and portion of the Arrest Record, dated 3 January 2001. e. Newspaper Clippings, dated 9 March 2001, which states that the Public Safety Department in the historic town of Steilacoom is taking a toll on the town’s pride. f. Evidence Sketches/Photographs, undated, which shows a diagram of the house upon the applicant’s arrest, and damages to clothes worn. g. Portion of Police Report, dated 3 January 2001; Pepper Spray Research Documents, dated February 1997; Court Case Documents, dated 12 October 2001; Initiation of Officer Elimination Notification Memorandum, 26 April 2002; Notification receipt of Elimination, dated 8 May 2002; and Chain of Command Request for Show Cause, dated 26 April 2002. h. Rebuttal of Initiation of Officer Elimination, dated 3 June 2002, which depicts all the incidents which have occurred and is the reason for the elimination proceedings. He also discredits the arresting officer stating his recent law suits for violation of residents civil rights. He describes the arrest in detail, and mentions that the pepper spray had an adverse impact on his medical condition. He states that his wife recants her statement to the trial counsel, and states details about his wife’s medical condition. i. Resignation in Lieu of Elimination Memorandum, dated 19 July 2002; Court Case Excerpt, dated 12 Oct 2001; Supplemental Police Report, dated 3 January 2001; Military Police Report, dated 27 January 200; National Crime Information Center (NCIC) Check, dated 1 February 2002; Spousal Letter to Leadership, dated 30 January 2002; and Spousal Letter to Applicant, dated 30 January 2002. j.. Report of Mental Status Evaluation (DA Form 3822), dated 31 January 2002; Fort Lewis Regulation 190-11, dated 26 July 2000; DA Form 268 (Report to Suspend Favorable Action), dated 17 October 2001, which states the applicant was flagged for adverse action; and Officer Record Brief (ORB), dated 4 March 2002. k. Officer Evaluation Report (8) dated, 8 November 2000 to 7 November 2001; 23 May 2000 to 7 November 2000; 11 September 1999 to 22 May 2000; 7 November 1998 to 26 February 1999; 21 February 1998 to 6 November 1998; 1 October 1997 to 20 February 1998; 18 March 1997 to 30 September 1997; 2 May 1996 to 17 March 1997; and Noncommissioned Officer Evaluation Report (3), dated February 1993 to October 1993; July 1991 to November 1991; 7 January 1991. l. Service School Academic Evaluation Report (4), dated 21 March 1999 to 10 September 1999; 28 November 1995 to 1 May 1996; 16 May 1993 to 29 October 1993; 1 July 1988 to 29 July 1988. m. Army Certificates of Training (7), dated25 July 1997; 3 December 1996; 29 October 1993; 29 July 1988; 23 January 1987; 5 December 1986; 16 March 1989; and Army Awards (9), dated 10 July 1991; 6 May 88; 7 November 1995; 26 September 1996; 3 December 1997; 4 February 1999; 23 October 2000; 22 July 1995. n. Individual Jump Records (3), dated 11 February 1999; Neurology Report, dated 12 June 2001; Excerpt from AR 600-8-24, dated 21 July 1995; Excerpt from AR 40-501, dated 27 February 1998; Excerpts from AR 635-40, dated 15 August 1990; Excerpt from DODI 1332.38, dated 14 November 1996; Information Paper on Physical Disability evaluation System, dated 22 June 2001; andSleep Disorders Research, dated June 2002. 4. A review of his service records shows: a. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 22 July 1995. b. He entered active duty on 6 June 1996. c. His Officer Record Brief (ORB) reflects that he served in Korea from12 November 1999 to 11 November 2000. d. On 26 April 2002, the CG, I Corps, Fort Lewis, WA (the General Officer Show Cause Authority (GOSCA)) notified the applicant he (the applicant) was initiating elimination action and that he was required to show cause for retention in the Army under the provisions of AR 600-8-24, Chapter 4, Paragraph 4-2b(5) (Acts of Personal Misconduct) and Paragraph 4-2b(8) (Conduct Unbecoming an Officer), for moral and professional dereliction based on acts of personal misconduct and conduct unbecoming an officer. The GOSCA's actions were based on the following specific reasons for elimination: * On 2 January 2001, the applicant was apprehended by civilian authorities for assaulting his spouse. The applicant refused to comply with local law enforcement and resisted apprehension, and became uncooperative * On 27 January 2002, the applicant was involved in another domestic altercation with his spouse in government quarters on a government installation e. On 26 April 2002, the SJA, Battalion and Brigade commanders recommended that the applicant be directed to show cause for retention on active duty. f. The applicant consulted with legal counsel on 8 May 2002 and subsequently acknowledged receipt of a copy of the notice of initiation of elimination action dated 26 April 2002. g. On 3 June 2002, the applicant supplied a rebuttal to the Initiation of Officer Elimination Memorandum. h. On 17 July 2002, the applicant submitted an unqualified resignation in lieu of elimination, waiving his right to appear before a Board of Inquiry. i. On 19 July 2002, the CG forwarded the recommendation for Resignation in Lieu of Elimination for the applicant to the Commander of Personnel Command (now called the U.S. Army Human Resources Command). He recommended the applicant receive a General Discharge Certificate, with a characterization of service as under honorable conditions j. On 20 August 2002, following a legal review for legal sufficiency, the separation authority approved the resignation in lieu of elimination for misconduct, moral or professional dereliction and ordered his service be characterized as under other than honorable conditions. k. The applicant was discharged on 9 September 2002. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty under the provisions of AR 600-8-24, Chapter 4, Paragraph 4-2b(5) and Paragraph 4-2b(8), with a general under other than honorable conditions characterization of service. He completed 8 years, and 13 days of active duty service. He was awarded or authorized the: * Army Commendation Medal (3rd Award) * Army Achievement Medal (4th Award) * National Defense Service Medal * Southwest Asia Service Medal (2nd Award) * Humanitarian Service Medal * Noncommissioned Professional Development Ribbon * Army Service Ribbon * Army Good Conduct Medal * Overseas Service Ribbon * Multinational Force And Observers Medal * Kuwait Liberation Medal * Government of Kuwait/Kuwait Liberation Medal * Parachutist Badge * Drill Sergeant Badge 5. By regulation, separations under the provisions of AR 600-8-24, when an officer’s tour of active duty is terminated due to discharge, retirement, or REFRAD, the period of service will be characterized as honorable, general under honorary conditions, general under other than honorable conditions or dishonorable, depending on the circumstances. The character of service will be predicated on the officer’s behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service. 6. 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 misconduct in the record, the Board found that the applicant’s conduct was conduct unbecoming an officer, and since the standard of proof being different in an administrative action, such as an administrative separation, when compared to a criminal proceeding, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. With an honorable discharge an officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. The DD Form 256A (Honorable Discharge Certificate) will be furnished to a discharged officer; however, a certificate is not issued when an officer is released from active duty. When the separation is based solely on preservice activities or substandard performance of duty, it will be Honorable. b. Under Honorable Conditions characterization of service, an officer will normally receive an Under Honorable Conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge. The DD Form 257A (General Discharge Certificate) will be furnished to a discharged officer; however, a certificate will not be issued when an officer is released from active duty. c. Under Other Than Honorable Conditions characterization of service, a discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable. A discharge certificate will not be issued. An officer will normally receive an “Under Other Than Honorable Conditions” when he or she: * Resigns for the good of the service * Is dropped from the rolls of the Army * Is involuntarily separated due to misconduct, moral or professional dereliction, or in the interest of national security * Is discharged following conviction by civil authorities 3. AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. Department of Defense Instructions (DODI)1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating Service members because of physical disability, making administrative determinations for Service members with Service-incurred or Service aggravated conditions, authorizing a fitness determination for members of the ready reserve who are ineligible for benefits because the condition is unrelated to military status and duty. 6. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20170018877 6 1