ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180013199 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge * his pay grade restored to E-4 * his reentry (RE) code changed to a more favorable one * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 during his Article 32(b) investigation (unavailable for review) the girl that was raped said that the applicant did not touch her. He was offered a discharge in lieu of court-martial that he had to take to limit his exposure to jail time. The only reason he had to take this option was because the three guys that did rape her said the applicant was in on it in order to reduce their jail time. It has been almost 20 years. He thought about submitting an application on two occasions before in order to reenlist so that he could go to Iraq with his younger brothers, but now he is buying a franchise and the change would lower his cost. He has nothing to attach because he threw all his paperwork away from the hearings. 3. Having prior enlisted service in the Maryland Army National Guard (MDARNG), on 29 April 1998, at the age of 24 years old, the applicant enlisted in the Regular Army for a term of 3 years in the rank/grade of specialist (SPC)/E-4. After his enlistment he was assigned overseas to Fort Wainwright, AK. 4. The applicant’s record is void of a separation packet. The record shows: a. On 8 December 1998, the applicant was one of four Soldiers who were investigated by the Criminal Investigation Division (CID) for violation of Article 134, Uniform Code of Military Justice (UCMJ) ––Indecent Acts, and/or Article 120, UCMJ ––, Rape or Carnal Knowledge, or Article 125, UCMJ –– Sodomy of a female civilian. The offenses occurred on 6 July 1998 and were reported on 8 July 1998. During the investigation, the applicant, after being advised of his legal rights, invoked his rights and requested a lawyer. The investigation established probable cause to believe the applicant committed the offenses of rape and indecent acts when he had forced sexual intercourse with the victim and watched while others raped her. b. On 17 December 1998, the appropriate authority approved the request for discharge in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 submitted by the applicant, directing he be reduced to rank/grade of private one (PV1)/E-1 and he be issued a discharge under other than honorable conditions. c. On 18 December 1998, he was discharged accordingly. His service was characterized as UOTHC. He completed 7 months and 20 days of net active service this period, with 7 months and 9 days of Foreign Service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * National Defense Service Medal * Army Service Ribbon * M-16 Rifle Expert Marksmanship Qualification Badge * Item 21 (Signature of Member Being Separated): the applicants signature * Item 25 (Separation Authority): AR 635-200, Chapter 10 * Item 26 (Separation Code): KFS * Item 27 (Reentry Code): 3 d. By memorandum, dated 23 September 2008, the Commander, Company C, 1st Battalion, 178th Infantry, Towson, MD, recommended that the applicant be allowed to return to service with the unit and he would freely endorse any waiver required for the applicant to return to service with the MDARNG. He states he had spoken with several Soldiers who served with the applicant and they believe that he would be an asset to the unit. 5. The applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his UOTHC discharge and the change his RE code. On 5 August 2009, the ADRB denied his petition citing the applicant was properly and equitably discharged. 6. On 4 December 2019, the USACIC Crime Records Center responded to ARBAs request for a sanitized report of investigation (ROI) and/or military police report (MPRs) and provided an ROI which involved the applicant and three other subjects. The sanitized report was provided to the applicant for rebuttal and/or comment; the applicant responded: a. He found the report hard to read because everything was blacked out. What he could make out of the report was that the two Soldiers, the two that made the deal with the authorities for a lesser jail time, threw him under the bus. In the Article 32 hearing, even the victim said the applicant did not touch her. If the Board read the report, everyone is all over the place and he was under the bed. When he came in the room everyone was dressed. All he can say is that he did not hurt or abuse (the victim). The only thing he was guilty of that night was not doing his job and protecting (the victim). b. All he would like is his discharge upgraded. He does not need his RE code changed or his rank and pay grade restored. 7. His record shows he enlisted in the Regular Army at the age of 24 years old, his record is void of the complete circumstances that led to his discharge, and DD Form 214 shows he was discharged under Chapter 10. He completed 7 months and 20 days of his 36 months contractual obligation. 8. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 9. Manual for Courts-Martial 1984, states Article 32 of the Uniform Code of Military Justice (UCMJ) requires an independent investigation of all charges and specifications against an accused prior to a general court-martial (GCM). 10. AR 601-210 (Regular Army and Reserve Enlistment Program), Table 3-1 includes a list of Reentry codes. Reentry code 1 applies to Soldiers who are considered qualified for enlistment if all other criteria are met and RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. 11. AR 635-5-1 (Separation Program Designator (SPD) Codes), identified SPD code KFS as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. 12. The SPD/RE Code Cross Reference Table provided RE code 3 as the proper RE code to assign to Soldiers separated with SPD code KFS. 13. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 14. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. In reaching its determination, the Board can consider the applicant’s petition and service record 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. 2. The Board also noted that he had legal counsel, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he acknowledged his understanding that by requesting discharge, that he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge, and that he could receive a discharge under other than honorable conditions. 3. 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. 4. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not required to serve the interest of equity and justice in this case. 5. 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. 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 3. Manual for Courts-Martial 1984, states Article 32 of the Uniform Code of Military Justice (UCMJ) requires an independent investigation of all charges and specifications against an accused prior to a general court-martial (GCM). This requirement protects the accused from baseless charges, provides the convening authority (CA) with information with which to determine whether to refer the charges to a trial by court- martial or other disciplinary proceeding, and provides the defense with pretrial discovery. 4. AR 601-210 (Regular Army and Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 includes a list of RE codes. * an RE-1 applies to Soldiers completing their terms of active service who are considered qualified for enlistment if all other criteria are met * an RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable - they are ineligible unless a waiver is granted 5. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code KFS as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court- martial. 6. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established RE code 3 as the proper RE code to assign to Soldiers separated with SPD code KFS. 7. 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. 8. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180013199 5 1