ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180008194 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge to general, under honorable conditions or honorable. 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) * Character References 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 he would like an upgrade of his under other than honorable discharge to general, under honorable conditions or honorable. He further states that based on the fact that it has been 31 years since his discharge, he requests an upgrade to use Veteran Affairs (VA) care facilities. 3. The applicant provides various character references that attest the applicant’s character and successes since discharge. In particular, a letter from the City of Ozark Police department chief that states that the applicant serves as a stunning example of the way the justice system can be a positive effect on a person and on the larger community. He also states that the applicant is a civic and church volunteer and puts in countless hours mentoring troubled youth in the community. 4. A review of his active duty service records show the following: a. He enlisted in the Regular Army (RA) on 31 October 1978. He reenlisted in the RA on 24 June 1981. b. He served in Germany from 13 October 1983 to 4 August 1985. c. A German Police Report, dated 2 May 1985, shows that the alleged victim X___ states that she opened her door and the applicant requested to talk to her about her boyfriend who the applicant supervised and that in good faith she let him into her home. At about 1:30am, she asked him to leave and he asked to sleep on her couch because a friend would pick him up at 4:00am. She told him no and walked him to the door the applicant asked for a kiss and again she told him no. The witness further states that the applicant forced himself on her after repeated attempts to prevent an assault. She states that she wants to press charges against the applicant. d. A German Police Report, dated 8 May 1985, states that a bed sheet was taken as evidence and photographs were taken of the living room and bedroom. The alleged victim X___ states that no prior sexual relationship existed between her and the applicant prior to the incident. She states that she had consumed alcohol and was not drunk and that the applicant may have been drunk due to his red eyes. e. DA Form 2823 (Sworn Statement) dated 9 May 1985, states that witness X___ X___ was at the house warming party for X___ and saw that the alleged victim X___ appeared to be having a problem with her husband and he heard the applicant tell the alleged victim that she should not go back to her house that night. He states that he saw the alleged victim and X___ sitting on the bed talking and saw the applicant enter the room where X___ and the alleged victim were in and saw X___ leave and X___ enter the same room. X___ X___ state she herd the alleged victim X___ crying and said words to the effect of help but did not hear any struggling or other noises. When he woke up the next morning X___ said that it was messed up and seemed bothered about something but never actually told him. He also states that X___ told him that he walked into the room and saw the applicant on top of the alleged victim X___ and she asked him to help her but he left the room because the applicant would have killed him if he had tried to stop him. X___ X___ further states that the way X___ and X___ were talking it did not seem like the applicant was actually having sexual intercourse while they were still in the room. f. DA Form 2823, dated 9 May 1985, states that witness X___ X___ noted the arrival of the applicant to his apartment to inventory his furniture as he was the supply sergeant and that he was getting ready to clear his apartment. He states that the applicant had about 2-3 beers with them while talking after completing the inventory. Approximately, twenty minutes after the applicant arrived, the alleged victim X___, the wife of corporal X___, arrived in her bathrobe and slippers and appeared to have been drinking. The alleged victim just started talking to the group and went to his apartment with X___ and 15-20 minutes later the applicant went to the bathroom in the apartment. He further states he witnessed the applicant on top of the alleged victim and that she was crying and asking for help and that X___ was slowly walking out of the room saying he couldn’t help her. The witness X___ X___ states that he could not believe what he was seeing and was afraid of the applicant because he was twice his size and that he and X___ walked out of the room and stood outside. He saw the alleged victim leave the apartment with her arms crossed and the applicant came down saying he had messed up and apologized. g. DD Form 2823, dated 9 May 1985, states that witness X___ X___ was told by the alleged victim X___ that she had something to tell him and that they both went in the kitchen and she said that she wanted to go upstairs with him. He followed her upstairs and she took off her top and he told her that he did not know what type of problems that she was having at home but he could not sleep with a friend’s wife. The alleged victim X___ stated that her husband would not know about it and took off her pants. The applicant entered the room and proceeded to get undressed when he saw the alleged victim X___ lying on the bed. h. DD Form 2823, dated 9 May 1985, states that witness X___ X___ states that the alleged victim X___ contacted him and told him that she has been assaulted in her apartment by the applicant. He read the applicant his legal rights which he waived and stated that he had consensual relations with the X___. He also received a report about a second possible victim, X___ a dependent of corporal X___. i. DA Form 2823, dated 16 May 1985, CID (Criminal Investigation Division) investigator states that he was present when the applicant was interviewed by the unit commander. He states that the applicant admitted to having sexual intercourse with the X___ but it was not rape and that he had been invited to her house. The applicant denied raping X___ and making threats to anyone. j. A CID report of investigation, dated 17 May 1985, provided preliminary information concerning the investigation of the applicant. This report included a witness statement from X___ X___ friend of X___, dated 21 May 1985, who relayed information concerning the alleged assault of her friend in her friend’s apartment that was allegedly perpetrated by the applicant. k. On 28 June 1985, the applicant’s immediate commander recommended him for trial by court-martial. l. Court Martial charges were preferred on 28 June 1985. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of wrongfully having sexual intercourse with X___ a married woman not his wife, one specification of rape of Se_n, one specification of wrongfully having sexual intercourse with X___ a woman not his wife, and one specification with intent to commit rape, commit assault upon X___ by laying his naked body on the body of X___ and by holding X___ down. m. On 28 June 1985, his chain of command reviewed the charges and documentary evidence and recommended trial by general court-martial. n. On 8 July 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him/her. Following consultation with legal counsel, he or she requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * He was making this request of his/her own free will and had not been subjected to any coercion whatsoever by any person * He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * He stated that under no circumstances did he desire further rehabilitation or to perform further military service * He elected to submit a statement on his own behalf o. On 8 July 1985, an article 32 hearing convened and states information provided by the alleged victims and witnesses concerning the applicant’s court-martial charges. p. DD Form 457 (Investigating Officer’s Report), dated 10 July 1985, the convening authority states that after careful consideration of all testimony presented it is his opinion that sufficient evidence exists to refer all the charges and specifications to trial by general court-martial. q. On 10 July 1985, his chain of command recommended separation under the provisions of AR 635-200, chapter 10 for the good of the service with an under other than honorable discharge. The separation authority approved the separation with reduction the grad of private/E-1. r. He was discharged from active duty on 5 August 1985. His DD Form 214 shows that he was discharged under the provisions of AR 635-200, chapter 10 for the good of the services with an under other than honorable discharge. It also shows that he completed 6 years, 9 months and 5 days of active duty service. 5. By regulation, AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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 serious, criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 31 October 1978 until 23 June 1981.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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. ABCMR Record of Proceedings (cont) AR20180008194 0 5 1