BOARD DATE: 24 January 2020 DOCKET NUMBER: AR20180014886 APPLICANT REQUESTS: The applicant requests: * an upgrade of his dismissal (dishonorable discharge) to a general under honorable conditions discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Four DD Forms 214: one (Report of Separation from Active Duty) and three (Certificate of Release or Discharge from Active Duty) * Medical Record Consultation Sheet, dated 17 August 1994 * Narrative Summary (NASUM), continuation pages 2 and 6 * Personnel Military Service Control Court Active Record * U.S. Army Judiciary Memorandum, dated 6 February 1997 * Initial Inmate Custody Classification Evaluation, dated 11 September 1998 * Three Release Date Computation Sheet, dated 13 February 1996 * Certificate of Parole, dated 11 June 1998 * Deputy Assistant Secretary (Army Review Boards) action on clemency, dated 16 June 1998 * Action Affirming General Court-Martial Sentence, dated 17 June 1998 * Office of the Staff Judge Advocate, Criminal Law Division Memorandum, dated 22 June 1998 * Parole Agreement, dated 13 August 1998 * Initial Inmate Custody Classification Evaluation (11 September 1998) * Shenandoah Valley Sex Offender Treatment Program * Certificate of Release from Parole, dated 1 April 2005 * Verizon Message Center Electronic Message, dated 9 January 2017 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 submitted a DD Form 149 and a self-authored statement. a. In his DD Form 149, he stated: (1) The majority of his active service was characterized as honorable as an enlisted E-1 to E-6 (promotable) and as a warrant officer. The character of his service was entirely characterized as unselfishly caring for others explicitly portrayed when he was a licensed practical nurse at the U.S. Army Burn Center in the sacrifice and time devoted to the care of both military and department of defense (DoD) civilians. He performed nursing as well as emotional comfort. He saved lives by performing cardio pulmonary resuscitation (CPR) to include patients as young as 15 month old infants to elderly retired older age groups. His devotion, high moral and ethical character during this high degree of a stressful work environment was not mentioned during his trial. Just after this incident occurred his battalion-level commander as well as division and post-level approved for him to enter inpatient alcohol rehabilitation in August 1998 at Sheppard Air Force Base. He completed the rehabilitation program and was discharged to return-to-duty by the counselors and physician psychiatrist supervisors. These issues were not raised as part of his defense because his defense attorney did not have guidance to enter a plea of insanity since he was under the influence of alcohol when the incident occurred on 10 June 1994. (2) His prior enlisted service of 15 years and 1 month was characterized as honorable. His prior warrant officer service of 1 year and 1 month was characterized as honorable. His officer period of service began on 2 October 1992 and was honorable until the date his court-martial sentence was approved. His discharge date was 8 July 1998 (DD Form 214 states separation date was 7 August 1998), a total 22 years active (DD Form 214 states 16 years and 29 days total prior active service and 2 years, 7 months, and 10 days of net active service this period). His behavior has only been characterized as honorable prior to this incident and continues to be honorable during confinement and the entire length of his parole, and continues to be honorable as of the date of this request. At the time of his out processing, he asked the administrative office about his benefits and was told he did not have any. He now knows this may have been incorrect due to the lack of former DD Forms 214. b. He further described and/or explained in his three-page self-authored statement, in pertinent part: (1) His military record was not fully represented at trial; how he was not properly represented during his post-trial process; his military career was one of the highest moral character until an incident in June 1994, which led to his general court-martial; his accomplishments before the incident; and his periods of honorable service. (2) How his irresponsible, heinous, reprehensible, and vulgar conduct he committed towards his step-daughter was witnessed by his wife and was committed during an alcoholic "blackout." He took his first responsible action following the incident by seeking alcohol rehabilitation and he was granted impatient treatment. He successfully completed rehabilitation in August 1994 and has not used alcohol since that date. (3) Why his attorney did not enter a plea of alcohol insanity. One of his three biological children were allowed to testify at his trial and what her testimony entailed. What transpired between the applicant and the military police on the night of the incident. (4) How he was not provided "due process" after his court-martial proceedings, which led to the convening authority's action being set aside; his life after his trial and after he was paroled, including how he successfully completed the sex offender treatment program; and how he has been denied benefits. It has been 23 years since his offense and 13 years since he has been released from parole. He requests an upgrade so that he could be allowed to be processed for retirement and obtain health benefits. 3. On 3 September 1976, the applicant enlisted in the Regular Army and on 9 May 1979, he was honorably discharged, in the rank of specialist (SPC). 4. On 10 May 1979, he reenlisted and on 29 August 1991, he was honorably discharged in the rank of staff sergeant (SSG) because he was ordered to active duty as a warrant officer. 5. On 30 August 1991, he enlisted in the U.S. Army Reserve and on 1 October 1992, he was honorably released from active duty (REFRAD), in the rank of warrant officer (WO1) to accept a commission. On 2 October 1992, he entered active duty as a reserve officer. 6. On 12 May 1995, the applicant was convicted by general court-martial of: * four specifications of committing indecent acts upon a female under 13 years of age * one specification of assault consummated by battery of a child 7. He was sentenced to dismissal from the service, confinement for ten years, and forfeiture of pay per month for 120 months. On 19 September 1995, the sentence was approved, and with the exception of the dismissal, was ordered executed. 8. On 8 January 1997, the U.S. Army Court of Criminal Appeals (USACCA) set aside the action by the convening authority, returned the case to the convening authority, and ordered a new action by the same or different convening authority. According to the USACCA, the applicant asserted that the Staff Judge Advocate (SJA) failed to serve the applicant's new defense counsel with the record of trial and the SJA's recommendation and USACCA agreed. 9. On 5 December 1997, after considering the new SJA recommendation, new convening authority action, and post-trial submissions, the USACCA affirmed the findings of guilty and the sentence. On 28 April 1998, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition to grant a review of his case. 10. The applicant provides: a. DD Forms 214 for periods ending: 9 May 1979, 29 August 1991, and 1 October 1992, which show the applicant's service as honorable. b. DD Form 214 for period ending 7 August 1998, shows the applicant was dismissed from the service with a dishonorable discharge in the rank of second lieutenant (2LT). He completed 2 years, 7 months, and 10 days net active service this period and 16 years, and 29 days total prior active service. The form also shows: * He was awarded or authorized: * Army Good Conduct Medal (4th Award) * National Defense Service Medal * Army Commendation Medal * Army Achievement Medal * Noncommissioned Officer Professional Development Ribbon (level 3) * Army Service Ribbon * Overseas Service Ribbon * Expert Field Medical Badge * Aircraft Crewmember Badge * Driver/Mechanic Badge * Dates of Time Lost During This Period: "950512 – 980807" c. Medical Record Consultation Sheet, dated 17 August 1994, shows the applicant was an inpatient at the Aeromedical Services 82d Medical Group SAFB (Sheppard Air Force Base), AETC (Air Education and Training Command), and he was returned home with a normal status of cardiac, pulmonary, trapped gas, and psychiatric. The form indicated that further evaluation was not needed and no special measures were not necessary and he could proceed with flight. d. Narrative Summary (NASUM), continuation pages 2 and 6, shows the applicant was diagnosed with alcohol dependence, nicotine dependence, bronchial asthma, and chronic hay fever. He was discharged with the medication Antabuse. The disposition and recommendation was to refrain from the use of alcohol, participate actively in the social actions at his base and Alcoholics Anonymous, and to continue his care at the base medical facility for management of his asthma and for prescription of Antabuse. He was qualified for worldwide duty and was competent for pay and record purposes. e. Personnel Military Service Control Court Active Record, dated 6 February 1996, shows the applicant was tried by court-martial on 12 May 1995 and a dismissal was a part of his sentence. It also shows he was convicted of indecent acts upon a child, child abuse, and indecent acts (not involving sodomy). f. Department of the Army, U.S. Army Judiciary Memorandum, dated 6 February 1997, shows the U.S. Army Court of Criminal Appeals set aside the action of the convening authority and ordered a new recommendation and action in the case. g. Three Release Date Computation Sheets, dated 13 February 1996, shows his the computations for this maximum release dates and his adjusted minimum release dates. h. Certificate of Parole, dated 11 June 1998 shows, his effective term of parole was effective on 11 May 2005. i. Deputy Assistant Secretary (Army Review Boards) action on clemency, dated 16 June 1998, shows the applicant was denied clemency and there was no change in his dismissal; however, his parole was approved effective 31 July 1998, conditioned upon continued good behavior while incarcerated. It stated upon release the applicant must participate in an alcohol abuse therapy program and a mental health therapy program focusing on sexual offenders. j. Action, dated 17 June 1998, approving the affirmed sentence and ordering it executed. k. Office of the Staff Judge Advocate, Criminal Law Division Memorandum, dated 22 June 1998, notifying the applicant that his dismissal from the Army was ordered executed. l. Parole Agreement, dated 13 August 1998, showing that the applicant agreed to the additional conditions of his parole to participate in the alcohol abuse therapy program and a mental health therapy program focusing on sexual offenders. m. Initial Inmate Custody Classification Evaluation, dated 11 September 1998, shows: * severity of the offense committed by the applicant (13 points – nonviolent, sex related and no weapon involved) * length of confinement remaining for him to serve(10 points – over 6 years to 8 years) * length of sentence remaining to parole eligibility (-1 point – over 3 years to 5 years) * escape history (0 points – none) * mental stability (0 points – no demonstrated difficulties) n. Shenandoah Valley Sex Offender Treatment Program, Treatment Effectiveness Assessment, 25 July 2000 to 3 August 2000, states: (1) The applicant was recommended for discharge from the Shenandoah Valley Sex Offender Treatment Program having successfully completed all clinical tasks and strongly recommended to continue the relapse preventions strategies he developed including regular attendance at Sexaholics Anonymous. He assumed a leadership role in the group and members found him to be an example of a highly motivated client who was willing to be confrontational or accept confrontation in an effort to make progress. (2) Plethysmography results produced a profile that indicated he had his highest arousal to consenting female adults. There continues to be some arousal to the female age 10 to 11 but these were much lower than to appropriate arousal. None the less, he will need to continuously monitor himself for high risk situations and avoid being alone with females under the age of 18. o. Certificate of Release from Parole, dated 1 April 2005, shows he was released effective 11 May 2005. p. Verizon Message Center Electronic Message, dated 9 January 2017, showing he had an confirmed appointment for an identification card with the Judge Advocate General Legal Center and School on 18 January 2017. 11. The applicant states the majority of his active service was characterized as honorable as an enlisted E-1 to E-6 (promotable) and as a warrant officer. The character of his service was entirely characterized as unselfishly caring for others explicitly portrayed when he was a licensed practical nurse at the U.S. Army Burn Center in the sacrifice and time devoted to the care of both military and DoD civilian. His record shows he served in the Regular Army as an enlisted Soldier and an officer. He also served in the USAR as a warrant officer. He was convicted by general court- martial for four specifications of committing indecent acts upon a female under 13 years of age and on specification of assault consummated by battery of a child. He was sentenced to confinement for ten years, forfeiture of pay, a dismissal from the service. 12. 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. 13. Army Regulation 600-8-24 (Personnel General Officer – Transfers and Discharges) states a member may be awarded an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer Under Honorable Conditions characterization of service when the officer’s military record is satisfactory but no sufficiently meritorious to warrant an honorable discharge. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 15. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. 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 nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found that his rights were protected by the Appeals Court in remanding his case back for a second decision due to procedural violation in the first court-martial. The Board also noted that his prior honorable service was considered and elements of that service were included on his final DD Form 214. The Board found the character of service just and 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. 3. In accordance with AR 15-185, ABCMR has the discretion to hold a personal appearance hearing; applicants do not have a right to appear personally before the Board. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) 600-8-24 (Personnel General Officer – Transfers and Discharges), in effect at the time, prescribed the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. It states: a. An honorable discharge is a discharge when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. b. An under honorable conditions discharge is when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. d. A member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 4. 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014886 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180014886 11 ABCMR Record of Proceedings (cont) AR20180014886 9