IN THE CASE OF: BOARD DATE: 11 September 2020 DOCKET NUMBER: AR20190002914 APPLICANT REQUESTS: * correction of his record to show he was retired in the rank/grade of sergeant first class (SFC)/E-7 effective on the day prior to his arrest on federal charges on 6 May 2010 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with hand-written statements * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 11 March 2013 * DD Form 214, for the period covering 14 April 1987 through 27 February 1995 * Member of Congress letter, dated 14 January 2019 assistance in obtaining the applicant's military records with enclosure * Three service school academic evaluation reports and ten NCO Evaluation Reports FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, 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: a. Block 29 (Dates of Time Lost During This Period) of his DD Form 214 (for the period ending 11 March 2013) reflects lost time from 6 May 2010 to 11 March 2013; however, if the time from 7 March 2002 to 5 May 2010 counts as good time, then he would have been retirement eligible as of 29 December 2009. He was never afforded or offered retirement once he was arrested on federal charges on 5 May 2010. This incident was the basis for his discharge (civilian conviction). b. In October 2010, an Administrative Board recommended that he should be separated from service, but he was not. In February or March of 2013 he signed a document to separate himself from service for the good of the Army through his counsel; however, those documents are missing. He requests that the Board investigate those missing documents through the Trail Defense Services at Fort Bragg, NC. c. He also wonders if the process leading to his discharge was legal in according to statutory and regulatory guidance. 3. The applicant enlisted in the Regular Army on 14 April 1987. The DD Form 214 he was issued shows he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 4, by reason of completion of required active service and he was transferred to a Reserve unit on 27 February 1995. It shows he completed 7 years, 10 months, and 14 days of net active service, had no prior active or inactive service, and had no lost time during the period. 4. Following a period of Reserve service and a break in service, the applicant reenlisted in the Regular Army on 10 November 1997. Subsequently, he executed two reenlistments and obtained the rank/grade of SFC/E-7 on 1 November 2004. 5. The applicant's records contains the following evidence and information: a. The applicant's immediate commander initiated action to separate him on 18 June 2010, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c (commission of a serious offense), and recommended an under other than honorable conditions characterization of service. He cited the reasons for the proposed action as: (1) In that he did, at or near, on or about 3 November 2008, wrongfully commit indecent conduct to wit: engaged in sexual intercourse with (female) in the presence of his seventeen-year-old son. (2) In that he did, on or about 3 November 2008 at or near, employ, use, persuade, induce, entice, and coerce a minor to engage in sexually explicit conduct for the purpose of producing child pornography as defined in 18 U.S.C. § 2256(8), which conduct was to the prejudice of good order and discipline in the armed forces or of nature to bring discredit upon the armed forces. (3) In that he did, between on or about April 2006 and on or about October 2008 at or near, knowingly possess more than three images and video files of child pornography as defined in 18 U.S.C. § 2256(8), which conduct was to the prejudice of good order and discipline in the armed forces or of nature to bring discredit upon the armed forces. b. The applicant acknowledged receipt of the notification, his rights under applicable laws, and his right to consult with military counsel on 18 June 2010. c. The applicant's immediate commander recommended he be separated from the Army with an under other than honorable conditions characterization of service discharge on 19 July 2010. The commander cited the same reasons for action as before. d. The applicant's intermediate commander concurred with the recommendation and that he receive an under other than honorable conditions characterization of service discharge on 19 July 2010. e. A memorandum from the Senior Paralegal NCO, 4th Brigade Combat Team (Rear)(Provisional), 82d Airborne Division, Fort Bragg, NC, dated 20 July 2010 noted that the applicant was notified on 18 June 2010 of the proposed action and acknowledged receipt. It was also noted the applicant did not submit any matters as requested within the time prescribed by regulatory guidance. The action was being referred to the Staff Judge Advocate, 82d Airborne Division, for referral to an Administrative Elimination Board. f. A memorandum from the Acting Staff Judge Advocate to Commander, Headquarters, 82d Airborne Division, subject: Administrative Separation pursuant to Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense, dated 22 July 2010 recommended he convene an Administrative Separation Board. g. A memorandum from Commander, Headquarters, 82d Airborne Division, dated 22 July 2010 directed an Administrative Separation Board to be convened to determine whether the applicant should be separated from the Army prior to his expiration term of service, under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense. h. A memorandum from the Board President to the applicant, dated 8 October 2010 informed the applicant that his original board date was delayed until 19 October 2010 and a complete copy of the evidence was presented to his defense counsel. It further noted the investigation would continue in his absence due to his civilian confinement and that he would be represented by counsel during the proceedings. i. In a memorandum for record, the applicant acknowledged receipt of the memorandum of the change in date to the administrative separation board on 8 October 2010 with his signature. j. Although a complete copy of the Administrative Separation Board proceedings are not available for review, his record does contains a "Verbatim Findings and Recommendations" document indicating the board's decision. It shows: (1) The board considered all the evidence and found the applicant did wrongfully commit indecent conduct by engaging in sexual intercourse with (female) in the presence of his seventeen year old son and did knowingly possess more than three images and video files of child pornography as defined in Title 18 U.S.C. § 2256(8), which conduct was to the prejudice of good order and discipline in the armed forces of nature to bring discredit upon the armed forces. (2) The board found the applicant did not employ, use, persuade, induce, entice, and coerce a minor to engage in sexually explicit conduct for the purpose of producing child pornography as defined in Title 18 U.S.C. § 2256(8), which conduct was to the prejudice of good order and discipline in the armed forces or of nature to bring discredit upon the armed forces. (3) The board recommended that the applicant was undesirable for further retention in the military service and his rehabilitation was not deemed possible and that he be discharged from the service with an under other than honorable conditions discharge certificate. This document was signed by each member of the board on 19 October 2010. k. A memorandum to Commander, 82d Airborne Division, from the Staff Judge Advocate, dated 28 October 2010 noted the findings and recommendation of the board. He recommended approval of the findings and recommendation of the board and the applicant be separated with an under other than honorable conditions characterization of service. It was further noted that since the applicant had over 18 years of service, the final determination regarding his discharge must be made by Headquarters, Department of the Army, in accordance with Army Regulation 635-200, paragraph 2-12(c)(2). l. A memorandum for Headquarters, Department of the Army, from the Commander, 82d Airborne Division, dated 28 October 2010, approved the findings and recommendation of the board and recommended the applicant be discharged with an under other than honorable conditions characterization of service. He further noted the applicant's over 18 years of service and, therefore, forwarded the action for a final determination by Department of the Army. m. A United States District Court, Eastern District of - Judgement in a Criminal Case document, dated 8 January 2011 that shows he pleaded and was found guilty of "manufacture of child pornography" with a sentence of 180 months (15 years) in federal prison and to pay restitution of $10,000. n. In a memorandum, dated 28 January 2013, the Assistant Secretary of the Army (Manpower and Reserve Affairs) (acting on behalf of the Secretary of the Army) approved and directed the applicant's separation under other than honorable conditions discharge certificate, as recommended by the 19 October 2010 administrative separation board. 6. The applicant was discharged on 11 March 2013 under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (serious offense). The DD Form 214 he was issued shows he was discharged in the rank/grade of private/E-1 and his service was characterized as under other than honorable conditions. It further shows he had completed 12 years, 5 months, and 26 days of net active service, with 7 years, 10 months, and 14 days of prior active service. Block 29 of his DD Form 214 shows he had lost time from 6 May 2010 through 11 March 2013. 7. The applicant provides three service school evaluation reports and ten NCO evaluation reports to show his character of service. He also provides a Member of Congress letter, dated 14 January 2019 noting the Congressman's assistance in obtaining his military records from the National Personnel Records Center. 8. His record is void of any documentation, nor does he provide any, that indicates he submitted a request for separation for the good of the service or submitted an application for a voluntary retirement when he met eligibility requirements. 9. The applicant requests an investigation into missing documents he believes are not a part of his records. Army Regulation 15-185 (ABCMR), the regulation under which the Board operates, states the ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 states if the separation authority recommends involuntary separation of a Soldier with 18 or more years of active Federal service, the proceedings, with complete documentation and the recommendation of the separation authority, will be sent to Headquarters, Department of the Army for final determination. b. Paragraph 2-14 (Civil Confinement) states a Soldier confined by civil authorities will receive notice under the notification procedure or the administrative board procedure, as appropriate. The notice will be delivered personally to the Soldier or sent by certified mail, return receipt requested. When entitled to an administrative board, the Soldier will be notified that the hearing by a board of officers will proceed in his/her absence and that counsel will represent him/her. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 11. Title 10, U.S. Code, section 3914 provides that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title may, upon his request, be retired. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board found insufficient evidence to support a conclusion that the applicant should have been given the opportunity to retire for length of service instead of being discharged under other than honorable conditions due to misconduct. The Board found no violations of due process and further noted the applicant's discharge was approved by the proper authority within Headquarters, Department of the Army. The Board determined the applicant's discharge for commission of a serious offense was not in error, unjust, or inequitable. 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, United States Code, 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 Army Board for Correction of Military Records (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. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 3. Army Regulation 635-200, dated 6 September 2011, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13 states when a Soldier is to be discharge under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 1-14 states if the separation authority recommends involuntary separation of a Soldier with 18 or more years of active Federal service, the proceedings, with complete documentation and the recommendation of the separation authority, will be sent to Headquarters, Department of the Army for final determination (see para 1-9f for exceptions). c. Paragraph 1-19f states except when discharged pursuant to the approved sentence of a court-martial or for physical disability, any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval at Headquarters, Department of the Army level. These separation actions will be submitted to Headquarters, Department of the Army for forwarding to the proper authority. d. Paragraph 2-6b (Separation Authority Action after Board Hearing) states a Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to Headquarters, Department of Army will be given the opportunity of applying for retirement. He/she will be told that authority to submit the application does not assure that it will be approved. e. Paragraph 2-12c(2) (Findings and Recommendations of the Board) states when board action is completed on a Soldier with over 18 years of service, the findings and recommendations of the board, with complete documentation and the recommendation of the convening authority, will be forwarded to Headquarters, Department of the Army for final determination when the convening authority recommends discharge. f. Paragraph 2-14 (Civil Confinement) states, in pertinent parts, a Soldier confined by civil authorities will receive notice under the notification procedure or the administrative board procedure, as appropriate. The notice will be delivered personally to the Soldier or sent by certified mail, return receipt requested. When entitled to an administrative board, the Soldier will be notified that the hearing by a board of officers will proceed in his/her absence and that counsel will represent him/her. g. 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. h. 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. i. Chapter 12 (Retirement for Length of Service) provides: (1) Paragraph 12-3 pertains to general provisions of laws governing retirement. It states, in pertinent part, that years of service for retirement are computed by adding all active federal service in the Armed Forces and service computed under Title 10, U.S. Code (USC), section 3925. (2) Paragraph 12-4 states a Soldier who has completed 20 but less than 30 years of active federal service in the United States Armed Forces may be retired at his or her request (see para 12-14f). The Soldier must have completed all required service obligations. (3) Paragraph 12-14f states all requests for retirement of eligible Soldiers with less than 30 years of service are considered on their individual merits. Such requests normally should be approved. Requests, however, may be disapproved, or the required date of retirement delayed, based on the best interest of the Army. j. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 4. Title 10, U.S. Code, section 3914 provides that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title may, upon his request, be retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002914 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1