ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190002275 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Eight letters of support/recommendation * Six Certificates of Recognition/Achievement/Commendation * Letter of Congratulations from U.S. Congresswoman * Five Certificates of Completion * Federal Communications Commission (FCC) Radio Telephone Third Class Operator Permit FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 served in the U.S. Army Reserve (USAR) from 1975 until 1988, then entered the Active Guard/Reserve (AGR) program from 1988 to 1998. His adverse character of service was unjust because he had been awarded both military and civilian awards; in effect, an under other than honorable conditions discharge does not accurately reflect the quality of his overall service to his country. 3. The applicant provides: a. Eight letters of support, all of which affirm the applicant is someone who has demonstrated a high degree of service and dedication to his family and community. Included were a retired Army lieutenant colonel and chaplain, who is now a Community Outreach Chaplain for the Department of Veterans Affairs; he stated the applicant has led an exemplary life. A senior pastor, for whom the applicant provided contract camera work in support of her television show, wrote the applicant often went "above and beyond" to finish a task. Additionally, other members of his community praised the applicant for his role as a computer applications instructor, and for the support he provided a faith-based political action committee, where he interviewed political candidates to evaluate their qualifications. b. Eleven certificates, reflecting the applicant's contributions as a volunteer and his successful completion of media-related courses; he also includes a letter of congratulations from a U.S. Congresswoman for his contributions as a volunteer and an FCC radio-telephone operator permit. 4. The applicant's service records show: a. The applicant enlisted into the USAR on 16 December 1976; he held military occupational specialties 25Z (Visual Information Chief) and 46R (Broadcast Journalist). Effective 1 June 1988, he was promoted to sergeant first class (SFC). b. Effective 9 December 1990, the applicant was ordered to active duty for a 3-year term in the AGR. On 8 December 1993, his AGR status was extended, and he immediately reenlisted for 6 years. c. On 13 December 1993, the U.S. Army Criminal Investigation Command (CID) initiated an investigation into allegations the applicant was married to two women at the same time. On 21 March 1994, a final CID report stated their investigation found sufficient evidence to show probable cause the applicant had committed bigamy, in violation of the Uniform Code of Military Justice (UCMJ). d. On 26 July 1995, the applicant's chain of command notified him he had been selected for a Department of the Army (DA) bar to reenlistment under the Qualitative Management Program (QMP); the applicant elected to file an appeal. On 18 December 1996, the applicant's QMP appeal was denied. e. On 19 April 1997, the applicant's commander recommended the applicant for separation under chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated his basis was evidence the applicant had committed the act of bigamy by marrying Mrs. R__ (M__) on 17 February 1991, while still being legally married to Mrs. R__ (T__). The commander noted, on 7 September 1993, the applicant divorced Mrs. R__ (M__), and was then only married to Mrs. R__ (T__). f. On or about 29 April 1997, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action. The applicant further affirmed counsel had told him of his rights and the effect of waiving those rights. The applicant elected the following: he requested to have his case considered by a board of officers; to personally appear before the board of officers; and to be represented by counsel. He opted not to submit a statement in his own behalf. g. On 22 October 1997, a board of officers convened to consider whether the applicant should be retained or separated for serious misconduct; the applicant was present with counsel. (1) The board heard testimony from: * CID special agent (SA) who served as the team chief for the applicant's investigation; the SA verified the documentary evidence that supported the bigamy allegations * Applicant's supervisor, Chief Warrant Officer 4 (CW4) S__, who testified the applicant's wife, Mrs. R__ (M__), had called him after she learned the applicant was married to someone else; the commander directed CW4 S__ to notify CID of this information (2) The applicant's testimony included a description of his military service, and he enumerated his awards (both military and civilian). (a) The applicant acknowledged marrying Mrs. R__ (T__), but denied ever marrying Mrs. R__ (M__). The applicant further stated he financially supported Mrs. R__ (T__) and their children; they lived in the family home in Pennsylvania (PA). Mrs. R__ (T__) knew a woman (Mrs. R__ (M__)) lived with him at his California residence, and she was fine with this arrangement. When Mrs. R__ (M__) left his house, she took equipment valued at about $10,000; she also withdrew $3,000 from his checking account and purchased a car under his name. She left him in a financial bind. (b) Regarding his QMP action, he stated the initial basis was something to do with an Army Physical Fitness Test. He contended, however, he had not failed any of his physical fitness tests; the reason later changed to misconduct. (3) The Board heard testimony from Mrs. R__ (T__), who affirmed she married the applicant in 1975, and was still married to him; she lived in PA with their three children. The applicant moved out when he joined the Army. She was familiar with R__ (M__) and knew she had been living with her husband. The agreement she and the applicant made was for him to send money for their children. She acknowledged the applicant had asked her for a divorce, but she had not consented. (4) At the conclusion of testimony and the presentation of evidence, the board determined the applicant had committed the offense of bigamy, and recommended his separation under other than honorable conditions. h. On 30 October 1998, the separation authority approved the board's findings and recommendations, and directed the applicant's under other than honorable conditions discharge; on 3 December 1998, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 7 years, 11 months, and 25 days of net active service in an AGR status; 1 month and 26 days of prior active service; and 13 years, 9 months, and 27 days of prior inactive service. Additionally, the remarks section reflected his continuous honorable service for the period 9 December 1990 to 7 December 1993. He was awarded or authorized the following: * Army Achievement Medal * Army Good Conduct Medal (2nd Award) * Army Reserve Components Achievement Medal (2nd Award) * National Defense Service Medal (2nd Award) * Noncommissioned Officer Professional Development Ribbon with Numeral 3 * Army Service Ribbon * Army Reserve Components Overseas Training Ribbon 5. The applicant contends his under other than honorable conditions discharge was unjust because, in effect, it did not correctly reflect the quality of his service to his country. a. Regulatory guidance at the time required commanders to initiate separation action against Soldiers who had committed a serious military or civilian offense, for which a punitive discharge was an authorized punishment under the UCMJ. The maximum punishment for bigamy included a punitive discharge. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statements, the evidence presented to and the conclusions of the board of officers, the applicant’s record of service, the nature of the offense and the character of service he received. The Board considered the eight letters of support and eleven certificates provided by the applicant in support of clemency. The Board majority determined, based on the evidence and his statements, that the character of service he received was too harsh and recommended an upgrade; one member found insufficient mitigation for the misconduct and recommended denying the applicant’s request. 2. After reviewing the application and all supporting documents, the Board majority found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 amending his DD Form 214 for the period of service ending 3 December 1998 to show in item 24 (Character of Service) – “General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his character of service to “Honorable”. 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 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders were required to initiate separation action when they determined a Soldier had committed serious misconduct, and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. 3. The Manual for Courts-Martial, United States, in effect at the time, showed in Appendix 12 (Maximum Punishments Chart) that Article 134 (General Article – Bigamy), UCMJ, included both the dishonorable and bad conduct discharge as punishments. 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. 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 (to include that provided by an applicant), 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, 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. ABCMR Record of Proceedings (cont) AR20190002275 6 1