ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180012336 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge. 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) * Self-Authored Letter * Character Reference Letters from X___, X___, X___, and X___ * SF 180 (Request Pertaining to Military Records) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 (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 he was stationed at Fort Dix, NJ at the 532nd Military Police Company. a. Sergeant (SGT) X___ was in his company (he does not remember his first name). SGT X___ was a married man who reenlisted then went to Germany. He later learned he did not tell his wife, Mrs. X___ (he does not remember her first name). He was on night shift working when a woman called in and was crying on the other end of the line. She stated she had been beaten and raped by five African American men. She stated she wanted her husband, SGT X___. b. He looked for him everywhere and later learned he had reenlisted and shipped to Germany. When he told her that her husband was gone, she cried and cried. He felt sorry for her. He told her he would check on her when he got off of duty the following morning, which he did. He was young and naïve. He truly felt sorry for her since SGT X____ had left her and her five kids. Over the next few days, he took her to the reenlistment office and the Red Cross office. He bought her groceries, just trying to help her out. The last time he checked on her she wanted money which he did not have much of. She became angry when he told her no so he left. c. Within minutes he was pulled over by the police. He told the officer he was returning to base and the officer followed him there. The officer told his commanding officer he was going to be charged with rape. He would be looking at 10, 15, or 20 years. He understood she had accused him of beating her and her children up and then raping her. This was the same thing she had alleged when she called looking for her husband. Only this time he was being accused. The commander told him to return to his barracks. His head was spinning and his 21 year old self made a rash decision out of fear. He went absent without leave (AWOL). He headed for CA. It was a stupid, rash decision made by a young kid who saw his future disintegrate with that accusation. d. Roughly a year later, he was returned to the Army at Fort Ord, CA. He does not remember the company commander’s name of who questioned him as to why he left the Army. He told him his story from the beginning. He explained he knew he did the wrong thing and he regretted the decision. He told the commander he would rather stay in the Army and make up for the time he was gone. He had planned on making the military a career before the incident happened. The commander was surprised by what he said and called his old base at Fort Dix, NJ. He reached the base commander who was none other than (SGT) X____ Based on what (SGT) X____, the now ex-husband of the woman who accused him, the commander told the Fort Ord, CA commander that his ex-wife made the very same accusation a total of five times over the past year. He only spent one night in the stockade. He worked on the base for the next three months after that. He was then released with an under other than honorable administrative discharge. 3. The applicant provides four character reference letters. a. X___ states he has known the applicant for seven years. He has never seen him angry or lose his temper. He has always tried to help people. He is one of the finest people he knows. b. X___ states she have known the applicant since 2015. When situations arose, she were always able to count on the applicant to care for her home, animals, or whatever was needed. She has enjoyed being close neighbors. c. X___ states he has known the applicant for approximately five years. He has been an exceptional friend and associate. His character and honesty have been without fail. d. X___ states the applicant is a kind and responsible man who made sure his rent was paid and his wife was well loved. He believes the applicant is a good man and could use any help that is available. 4. A review of the applicant’s service record shows: a. On 1 February 1968, he enlisted in the Regular Army. b. On 14 June 1968, he accepted nonjudicial punishment for one specification of contempt towards a superior noncommissioned officer. His punishment included forfeiture of $10 for one month, and extra duty and restriction for seven days. c. On 22 December 1969, he was reported in an absent without leave (AOL) status and on 21 January 1970, he was dropped from rolls. He ultimately returned to military control on or about 9 September 1971. d. On 8 October 1971, court-martial charges were preferred against him for one specification of AWOL from 22 December 1969 to 10 September 1971. e. On 15 October 1971, after consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge f. In a self-authored statement, dated 18 October 1971, he stated he was compassionately reassigned to Fort Dix, NJ, but arrived there later than he was originally scheduled to be. He was assigned to the 532nd Military Police Company where he served until 18 December 1969 when he went AWOL because he could not take the pressure and had to be with his wife. While he was in the Fort Ord stockade he found out they wanted to give him a general court-martial and a bad conduct discharge. That is why he requested the chapter 10. If they do that to him, it might result in suicide or cause him to start taking pills. He feels it would be better for the Army to let him out before that happens. It is impossible for him to do duty. g. On 11 November 1971, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for separation. He would be discharged under the provisions of AR 635-200, chapter 10, with an undesirable conditions discharge, and reduced to the lowest enlisted grade. X____ On 15 November 1971, he was discharged from active duty under the provisions of AR 635-200, chapter 10, and issued a under other than honorable conditions discharge. His DD Form 214 reflects that the completed 1 year, 10 months, and 12 days of active service with 683 days of lost time from 8-9 December 1969 and 22 December 1969 to 4 November 1971. It also shows that he was awarded or was authorized the National Defense Service Medal. i. On 6 February 1991, the ABCMR administratively closed his application after it determined that more than three years elapsed between the date he discovered, or reasonably should have discovered, the alleged error or injustice and the date his application was submitted. He did not provide any reason for his failure to timely file. j. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the 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 warranted. Based upon the passage of time, the type of misconduct and the guidance on clemency, the Board concluded to grant clemency to the applicant by upgrading his characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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. c. Chapter 10 (Discharge for the Good of the Service) states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20180012336 6 1