ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180015617 APPLICANT REQUESTS: In effect, a correction of his characterization of service from under other than honorable conditions to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, in effect, the way he was discharged was not right. He served too long not to have any benefits. It is time for this to be changed. 3. The applicant served honorably in the Regular Army (RA) from 21 January 1992 through 15 February 1994 and from 16 February 1994 through 9 April 1997 (a total of 5 years, 2 months, and 19 days of active service). He served in Bosnia from 8 January to 23 September 1996 and in Germany from 19 October 1994 to 18 October 1997. 4. He reenlisted in the RA on 10 April 1997 for 6 years, in pay grade E-5. He held military occupational specialty 31L (Wire Systems Installer). On 18 February 1998, he was assigned to Fort Huachuca, AZ. 5. On 7 August 2000, in Justice Court #5, Sierra Vista, AZ, a petition for injunction against harassment was filed against the applicant after he was accused of putting his hands down the front of the pants of a 17 year old girl [D______ T_____] and for asking her to perform fellatio on him. 6. The applicant’s separation packet contains a Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) for committing an indecent assault upon Miss D______ T_____ [the 17 year old]. However, this document contains no signatures or dates. 7. On 27 November 2000, court-martial charges were preferred against the applicant for: * wrongfully driving a motor vehicle while his license was suspended on 7 October 2000 * wrongfully driving a privately owned vehicle without proof of financial responsibility on 7 October 2000 * driving while drunk with a breath alcohol concentration of 0.169 percent as shown by a chemical analysis on 7 October 2000 * committing sodomy with C_____ W___, by force and without consent on 5 August 2000 * using indecent language and making a false swearing on 5 August 2000 8. On 14 December 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge if the request were approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He elected not to submit a statement on his own behalf. 9. On 21 December 2000, the Staff Judge Advocate approved the charges. 10. Both the applicant’s immediate and intermediate commanders recommended approval of the applicant’s request for discharge with an Under Other Than Honorable Conditions Discharge Certificate. 11. On 5 January 2001, the separation authority approved the applicant's request for discharge with the issuance of an under other than honorable conditions characterization of service. The applicant was discharged accordingly on 31 January 2001. 12. His DD Form 214 shows he was discharged under the provisions of chapter 10, AR 635-200, in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He completed 9 years and 10 days of net active service this period. His DD Form 214 shows in: a. (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Army Achievement Medal (3rd Award), Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer’s Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, Armed Forces Service Medal, Driver and Mechanic Badge with Driver-W Bar, and North Atlantic Treaty Organization Medal. b. (Remarks) //IMMEDIATE REENLISTMENTS THIS PERIOD –19920121 – 19940215, 19940216 – 19970409, and 19970410 – 20010131//. 13. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. This regulation states although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. 14. The applicant contends the way he was discharged was not right. He served too long to be denied benefits. The applicant completed two periods of honorable RA service prior to the period of service under review and he completed about two thirds of his current 6 year service obligation. He was charged with a number of serious offenses and he voluntarily requested a discharge to avoid a felony conviction and or jail time. In making its determination, the Board can consider the applicant’s contentions and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief, other than the administrative notes found by the analyst of record. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity due to the severity of the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate. 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: Other than the administrative notes found by the analyst of record below the signature block, 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): 1. AR 635-5 (Personnel Separations – Separation Documents) for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter, in Remarks, “CONTINUOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment). Then enter the specific periods of reenlistments as prescribed above. 2. As a result amend item 18 (Remarks) of his DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19920121 – 19940215 and 19940216 – 19970409.” 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. Paragraph 3-7b provides that 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. 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 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. 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) AR20180015617 4 1