ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180012230 APPLICANT REQUESTS: An upgrade of characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 93 (Record of Emergency Data), dated 17 July 2000 * SGLV 8286 (Servicemembers' Group Life Insurance Election and Certificate), 17 July 2000 * Standard Form 93 (Report of Medical History), 6 July 2001 * Standard form 88 (Report of Medical Examination), 13 July 2001 * Orders 140 – 0050, United States (U.S.) Army Transportation Center, dated 20 May 2003 * Orders 148 – 0013, U.S. Army Transportation Center, dated 28 May 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 June 2003 * DA Form 2 – 1 (Personnel Qualification Record), undated FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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, in effect, a fellow Soldier (Specialist (SPC) "M") discovered he was in possession of pornographic material, which was homosexual in nature and later SPC M relentlessly attempted to get him to admit to being gay. SPC M questioned him in the barracks and during motor pool hours of operation, which was humiliating in front of his peers, whom he respected and admired, the humiliation began to break him down mentally and physically. His anxiety over being discovered eventually turned into raw fear about what would happen if he ever confirmed he was gay. The political climate at the time did not lend to a safety net for gays in the military. He contends: * approximately five years before his enlistment "MS" was brutally murdered for being gay * he was only 19 years old at the time of his enlistment and he was afraid his fellow Soldiers would discover he was gay * SPC "M's" constant badgering and harassment led him to falsely admit to being attracted to him while under the influence of alcohol * he eventually explained the circumstances to his commanding officer who started a Chapter 15 that led to several medical appointments and paperwork indicating he was undergoing a Chapter 15 * SPC "M's" suspicions were confirmed and the harassment went from verbal to physical in nature * he did not understand his rights at the time * it was impressed upon him that the same people he enlisted to serve and protect would also harass or violate him for discovering he was gay during his enlistment 3. On 12 July 2000, the applicant enlisted into the Regular Army for a period of 4 years. His DD Form 4 list his date of birth (DOB) as . He completed basic training and advance individual training and was awarded the military occupational specialty (MOS) 88M (Motor Transport Operator). 4. The applicant's records include personnel actions, reports of Return of Absentee, and records from civil authorities and Military police reports, which show the following changes in the applicant's duty status: * On 30 May 2001 – present for duty (PDY) to Absent without Leave (AWOL); his date of return is unknown * 24 July 2001 – PDY to AWOL * 25 July 2001 – AWOL to Dropped from the Rolls (DFR) * 26 August 2002 – DFR to Civilian Confinement (CNF) * 1 October 2002 – DFR to return to military control * 27 May 2003 – CNF to PDY 5. On 15 August 2001, the applicant was charged with a violation of the Uniform Code of Military Justice (UCMJ), Article 86 (AWOL) for absenting himself from his unit on or about 24 July 2001. On 25 July 2001, he was dropped from the rolls. On 2 October 2002, the applicant was appended by civil authority and returned to military control at for Eustis, Virginia. 6. His record contains a letter from the Fort Eustice, VA Provost Marshal to the Western Tidewater Regional Jail, dated 2 October 2002, which states: a. The U.S. Military desired to take custody of the applicant upon release from the Western Tidewater Regional Jail's jurisdiction. b. The appropriate military and civilian authorities were advised of the applicant's detention (dated detained) on 26 August 2002 for the offense of credit card fraud and credit card theft. 7. A DD Form 616 (Report of Return of Absentee), dated 2 October 2002, shows efforts to apprehend the applicant were terminated because he was returned to military control after being apprehended by civil authorities. 8. The applicant submitted a letter, dated 6 December 2002, wherein he states he was currently incarcerated in the Western Tidewater Regional Jail, Suffolk, VA, he was going for sentencing after being found guilty of his charges, and he was advised to contact his commanding officer. a. He states he went AWOL in the Spring of 2001 for approximately 28 to 29 days. After his return he informed his supervisor of his homosexual tendencies and he was informed he would receive a Chapter 15. Word got out and he could not face the ridicule, he went AWOL again and did not return. b. His probation status stipulates a requirement to have a job or a status for his military service and he request a response on further action(s) or his discharge. 9. On 19 March 2003, the applicant's commander notified him that action was being recommended to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter14, paragraph 14-5, due to his conviction by civil court and he was being recommended to receive an Under Honorable Conditions (General) discharge from the Army. The proposed reasons for the action: * conviction by, on 1 February, for driving with a suspended license and for capias (failing to appear) * conviction by, on 15 February for obtaining money by false pretenses * conviction by Court, on 17 February, for driving with a suspended license and filing to appear * conviction by District Court, 19 March, for driving on a suspended license and capias (failing to appear) * nine months jail (civil) sentence 10. The applicant acknowledged receipt of the correspondence, on 19 March 2003, for action(s) to recommend him for separation under the provisions of Army Regulation 635–200, chapter 14, paragraph 14-5, and his right to consult with counsel prior to making an election of his rights. He was informed of his right to submit statements in his own behalf within seven days and to undergo a complete medical examination in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The commander advised the applicant of his right to: * consult with counsel * submit written statements in his own behalf * obtain copies of documents that will be sent to the separation authority * a hearing before an administrative separation board * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 11. On 25 April 2003, the applicant acknowledged he was advised by consulting counsel for the action to separate him for a conviction by civil court under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5. 12. On 1 May 2003, the applicant's intermediate commander recommended his discharge to be Under Honorable Conditions (General) under the provisions of Army Regulation 635–200, chapter 14, paragraph 14–15. The evidence of record shows he provided the approval authority a note, on 30 April 2003, to inform him of a statement by the applicant that he is a homosexual. 13. The applicant's record contains a memorandum from the office of the Staff Judge Advocate, dated 6 May 2003, which states, there was no legal objection to the proposed administrative separation of the applicant under the provisions of Army Regulation 635-200, paragraph 14-5 for conviction by a civil court. He is not entitled to a board as he has less than six years of creditable service and a discharge under other than honorable conditions was not being recommended. The applicant's statements about "homosexual tendencies" do not entitle him to a board, as that is not the reason for the commencement of the separation action. The proposed separation is in accord with the provisions of Army Regulation 635-300. 14. On 8 May 2003, the appropriate authority approved the recommendation(s) for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14- 5 and directed the applicant's term of service to be characterized as under honorable conditions (general). 15. On 27 May 2003, the applicant's duty status changed from civilian confinement to PDY. 16. On 4 June 2003, the applicant was discharged from the Army under the provisions of Army Regulation 635–200, chapter 14, section II. He completed 0 years, 10 months, and 15 days of creditable active service. His DD Form 214 shows: * block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – "ARMY SERVICE RIBBON//NOTHING FOLLOWS" * block 26 (Separation Code) – "JKB" * block 27 (Reentry Code) – "3" * block 28 (Narrative Reason for Separation) – "MISCONDUCT" * block 29 (Dates of Time Lost During This Period) – "20010530 – 20030527" 17. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 18. The applicant provides the following evidence in support of his request: * his report of medical history which list his purpose of examination as Chapter 15 (Homosexuality) * his report of medical examination which list Chapter 15 as the purpose of examination and shows he is qualified for the same 19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. a. Section II Conviction by a Civil Court, Paragraph 14-5 (Conditions the subject a Soldier to discharge and reduction in grade) states, a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: (1) A punitive discharge is authorized for the same or closely related offense under the MCM 1998, as amended. (2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. b. Initiation of the separation action is not mandatory. Although the conditions established in 14-5a(1) or (2) are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. c. If the immediate commander initiates separation Action, the case will be processed through the chain of command to the separation authority for appropriate action d. A Soldier convicted by a civil court will be reduced or considered for reduction. 20. The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. 21. 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. 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, 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. 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. 22. The Board should consider all of the applicant's statements and contentions 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, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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. X 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for conditions that subject a Soldier to discharge due to a conviction by a civil court. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts-Martial or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation. Initiation of separation action is not mandatory; the immediate commander must also consider whether the specific circumstances of the offense warrant separation. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge. The commander exercising general court-martial jurisdiction or higher authority may approve an honorable discharge. a. 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. 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. The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 4. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies. a. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)) * characterization of the discharge to honorable * the Reentry Eligibility code to an immediately-eligible-to-reenter category b. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct c. The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. d. The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT (or prior policies) are not warranted. Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law. Similarly, DOD regulations implementing various aspects of DADT (or prior policies) were valid regulations during those same or prior periods. Thus, the issuance of a discharge under DADT (or prior policies) should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action. 5. 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. 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, 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. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//