IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20180011557 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 552), dated 28 July 2018 * twelve Standard Forms (SF) 50 (Notifications of Personnel Action), dated between 19 November 2012 and 7 January 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 has been working for the U.S. Government for about six years now. He has worked for the Department of the Air Force and the Department of Veterans Affairs. He currently works for the Department of the Army in a career progressing position. His past performance has been outstanding and he has paid for his mistake over and over and over again. He is asking the Board to look at his career now and see how he is progressing as a government employee. b. He has not had any issues at all while working for the government. He has been dealing with depression since his discharge in 2004 and he wants to finish his schooling and get his Master's degree, to be that role model for his daughter. He does his best to be a constant professional every day and he helps fellow Veterans get referred for government and civilian jobs. He is only asking for a second chance. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 14 February 1989. He enlisted in the Regular Army on 30 August 1989. He completed training as a telecommunications operations chief. 4. The applicant was attending the Advanced Non-Commissioned Officers Course when he was counseled on 7 July 2003 regarding his performance and his professional growth. The DA Form 4856 (Developmental Counseling Form) notes he called his group leader on 6 July 2003 and informed him of a situation with his ex-wife. The applicant stated he and his ex-wife had an argument and she had found documents, including a divorce degree that indicated the two had been divorced since 19 November 2002. The applicant stated his ex-wife accused him of committing adultery while they were still married and fathering a child in Augusta. The applicant was told that if it was true, the best way to find out if he did father a child was to take a DNA test and to also seek legal assistance from the Judge Advocate General. He was reminded that once he was divorced, he needed to remove his ex-wife from his records and also change his basic allowance for housing from "with" to "without" because if he did not, it could be a career killer. He could not find the original divorce decree and his group leader told him he needed to find it because if he could not, his ex-wife could still use his medical and dental benefits. He was told that the allegations could be punishable under the Uniform Code of Military Justice (UCMJ) and he did not need that kind of attention. 5. A Memorandum for Commander, 447th Signal Battalion, was prepared on 25 July 2003, to document the commander's inquiry into the actions of the applicant as alleged by his ex-wife. The memorandum states: a. Since joining the company in 2002, the applicant had been a geographical bachelor and had lived apart from his wife, R____, whose domicile was located in Maryland. Over that year, the applicant routinely requested leave and passes in order to visit his wife in Maryland. b. The applicant's company commander was contacted by Sergeant G of the Prince George's County Police Department in Maryland, on or about 6 July 2003, regarding the applicant. Sergeant G, a friend of R____, informed the applicant's company commander that R____ was attempting to contact a member of the applicant's chain of command. The company commander made telephone contact with her and informed her that he was her husband's company commander. c. The applicant's wife explained that during the applicant's visit to his Maryland home on the July 4th weekend, she discovered that his belongings contained legal documents, including an uncontested divorce decree from Richmond County and a birth certificate, listing her husband as the father of a child born to Staff Sergeant C___. R____ confronted the applicant about the documents and he claimed they were forged papers. The applicant left the residence and returned to Fort Gordon, Georgia. d. An investigation revealed that the applicant filed for divorce through a publication in Richmond County on 26 August 2002. The decree of total divorce as granted on 19 November 2002. The applicant verified and swore to the Libel for Divorce Legal Pleading that he did not know the whereabouts of his spouse. This statement was contradictory to his actions and also the information obtained from his wife, R____. The applicant continued to carry on a relationship with R____ through 5 July 2003, when she found the divorce documents. The applicant later admitted to R____ that the documents were genuine. The applicant's sworn statement that he did not know the whereabouts of his wife R____ constituted a false official statement. e. The applicant's wife informed the company commander that she had made contact with the individual listed as the mother of the applicant's child on the birth certificate, Staff Sergeant C___, and the two of them spoke at length regarding their respective relationships with the applicant. The applicant's company commander contacted Staff Sergeant C___ and informed her of the situation. Staff Sergeant C___ agreed to give a sworn statement regarding the nature of her relationship with the applicant and further, details regarding the birth of their child. f. Staff Sergeant C___ revealed that she had a romantic relationship with the applicant since June 2000 but she was unaware that he was married. She discovered that she had become pregnant by the applicant in January 2002 and she pressed the applicant to marry her but he was reluctant, stating he wasn't ready to be married again. Staff Sergeant C___ stated that at 16 weeks of pregnancy, the applicant admitted that he was still a married man and had not been divorced from R____. Staff Sergeant C___ delivered the baby on 13 September 2002. She provided a sworn statement documenting these facts as well as a copy of an email sent to her from the applicant urging her not to cooperate with the commander's inquiry. g. The applicant was informed of his rights prior to questioning and he invoked his right to remain silent when asked about the allegations by his company commander. h. The commander's inquiry concluded that the applicant's actions with regard to his sexual relationship with Staff Sergeant C___, while still married to his wife R____, constituted adultery. The applicant deceived his wife R____, and his girlfriend Staff Sergeant C___, since January 2000 when his relationship with Staff Sergeant C___ began. Since July 2003, the applicant sought to hide his adulterous relationship, divorce, and fathering of a child by another woman. He also perpetuated the lie to his wife R____ that they were still married even after his divorce was finalized in November 2003. The applicant filed a false official statement in the county of Richmond in conjunction with his libel for divorce. The applicant sought to undermine the investigation by urging Staff Sergeant C___ not to cooperate with the command. 6. The applicant accepted nonjudicial punishment on 6 November 2003, under the provisions of Article 15 of the UCMJ, for the following violations: * Article 134 – wrongfully having sexual intercourse with Staff Sergeant C___, a woman who was not his wife, between on or about 1 June 2000 and on or about 13 September 2003 * Article 107 – with intent to deceive, sign an official record, to wit: In the Superior Court of Richmond County, Georgia, Domestic Relations Division, which states that he exercised reasonable diligence in ascertaining the whereabouts of the defendant, which statement was totally false, and was then known by him to be false, on or about 15 August 2002 * Article 134 – wrongfully impeding an investigation by attempting to influence the statement of Staff Sergeant C___ during the course of said investigation, on or about 7 July 2003 7. The applicant's punishment consisted of a forfeiture of $1,495.00 pay per month for two months and extra duty for 45 days. 8. In a Memorandum for Commander, U.S. Army Signal Center and Fort Gordon, Georgia, the applicant appealed his 6 November 2003 Article 15 punishment requesting that the punishment be reduced. He stated he had been flagged since 8 July 2003 and that his mother had conditional heart failure and he had not been able to see her since July 2003. He stated that half a month's pay for 2 months would create a financial burden on him especially around the holiday season and since he had been flagged, he could not leave Augusta and he also lost 18 days of leave as a result of the commander's inquiry. The applicant stated he was a good Soldier and he gave 150 percent as a drill sergeant for 36 months in the 15th Signal Brigade training Soldiers. 9. The applicant was counseled on 4 December 2003 regarding his pending appeal of his Article 15 punishment and the initiation of a flag due to the pending separation under Army Regulation 635-200, Chapter 14. His DA Form 4856 shows he was told: * his appeal had been accepted and would be heard by the post commanding general on 10 December 2003 * upon final adjudication of the pending appeal, he would be notified and required to return and sign the notice of appeal * on 18 November 2003, a memorandum was sent to the Chief of Security Division in the office of the Directorate of Public Safety requesting the revocation of his security clearance * due to that fact it was required that a Chapter 14 separation from the Armed Services be initiated * due to his pending separation a non-transferable flag had been initiated and a copy of the flag was being attached to his counseling form * the flag inferred that he would not be able to PCS until the flag had been lifted and the flag would be in place pending final outcome of the Chapter 14 proceedings 10. On the DA Form 4856, the applicant made an election to disagree with the charges on the DA Form 4856 and he stated that he was never counseled on any of the information contained therein by anyone in his chain of command until the day he was counseled. He stated that none of the allegations were proven by a DNA test and that he had stated that he would take a DNA test. 11. The applicant's commander notified the applicant on 14 January 2004 that he was being recommended for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – commission of a serious offense. He was told that he had a right to consult with counsel and that he may submit written statements in his own behalf. He acknowledged receipt of the notification on 14 January 2004; however, he refused to sign the notification. He was formally recommended for separation on 14 January 2004. 12. The applicant was advised by counsel on 21 January 2004 of the basis for the contemplated action to separate him for misconduct –commission of a serious offense. At that time, after consulting with counsel, he acknowledged receipt of the notification and he made an election to request consideration of his case by an administrative separation board, to request a personal appearance before an administrative separation board, and to submit a statement in his own behalf. 13. The commanding general directed the appointment of an administrative separation board on 24 March 2004. The applicant was notified on 19 April 2004 to appear before a board of officers. The board of officers convened on 21 September 2004 and the preponderance of evidence supported the fact that the applicant did commit acts of making a false official statement, he did commit acts of adultery, and he did commit obstruction of justice. The board of officers recommended the applicant be discharged from the service in accordance with Army Regulation 635-200, Chapter 14, paragraph 14-12c, and receive an under honorable conditions (general) characterization of service. 14. The applicant's counsel responded to the findings of the administrative elimination board requesting that the findings and recommendation of the administrative elimination board be set aside, or in the alternative, his discharge be characterized as honorable or his discharge be suspended. The counsel stated that the facts in the applicant's case were simply not in dispute and that the applicant had taken full responsibility for his actions. His counsel stated that the applicant admitted that he obtained a divorce without his wife's knowledge and that he originally misled to her and his chain of command about doing so. However, he asked that consideration of his exceptional service to the U.S. Army be considered prior to making a decision in his case. 15. The commanding general directed on 26 October 2004 that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. The commanding general directed the issuance of a DD Form 257A (General Discharge Certificate). 16. The applicant was discharged on 10 November 2004, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed 15 years, 2 months, and 11 days of net active service this period and his service was characterized as under honorable conditions (general). 17. The Army Discharge Review Board, after carefully examining the applicant's record of service on 27 August 2010, determined that his discharge was both proper and equitable and denied his request for an upgrade of his discharge. 18. The applicant provides numerous Notifications of Personnel Action showing his status as a federal government employee between 19 November 2012 and 7 January 2018. 19. The Board should consider the applicant's provided information 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 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, evidence of NJP, the outcome of the administrative separation board and the reason for his separation. The Board considered the documents showing his status as a federal government employee. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and found the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. 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 : : : 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 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. 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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// ABCMR Record of Proceedings (cont) AR20180011557 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180011557 8 ABCMR Record of Proceedings (cont) AR20180011557 7