ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190005358 APPLICANT REQUESTS: The applicant request his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal) * Applicant Statement 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 he was young when he entered the Army but this is something he always wanted to do; serve his country. He’s made some mistakes but one has haunted him. Having served his country dutifully, he believes he’s being penalized for a misunderstanding and hopes to correct his egregious error. He had a stellar track record in the military and has always practiced good and sound judgement. A blight on his record has led to his discharge classification. He believes the outcome was based on insufficient evidence. Serving his country has been the most rewarding duty he’s undertaken in his youth. He’s learned not only the importance of discipline; it taught him responsibility and a dedication that he has been able to pass on to his family members as well as use in his daily life. He understands the importance of learning from his mistakes which has contributed to the man he is today. He ask that his status be re- evaluated based on his contributions as a career military serviceman. 3. On 24 January 1979, the applicant enlisted in the Regular Army for three years at the age of 20. 4. On 29 August 1985, he was charge for: * Wrongfully commit an indecent act with Private Mc by having sexual intercourse with her in the presence of Private M * Commit an indecent assault upon Private D , a person not his wife, by feeling her breasts underneath her t-shirt and rubbing her clothing in the genital area, with intent to gratify his lust or sexual desires * Commit an indecent assault upon Private D , a person not his wife, by touching and kissing her, feeling her breasts, and rubbing the clothing covering her genital area, with the intent to gratify his lust or sexual desires * Commit indecent assaults upon Private First Class M by on three occasions grabbing her and feeling her breasts and twice touching her clothes in the genital area with the intent to gratify his lust or sexual desires * Wrongfully crawling into the tent of Private First Class M and Private Mc , both female trainees in his unit, by wrongfully kissing, pulling up the t- shirt and bra, and fondling and kissing the breasts of Private Mc , leading her hand to his genital area, asking her if she wanted to go all the way, and by placing her hand on his penis, all contacts not necessary to accomplish the training mission * Wrongfully pulling Private D , a subordinate female trainee in his unit, into his body, attempting to kiss her on two different occasions, all contacts not necessary to accomplish the training mission * Trying to get his body on top of Private D , a female trainee in his unit, and by touching and kissing her, feeling her breasts, and rubbing her clothes in the genital area, all contacts not required to accomplish the training mission * Wrongfully trying to interest Private M , a subordinate female trainee in his unit, in personal contact and by trying to kiss her, and by touching her genital area, all contacts not required to accomplish the training mission 5. On 4 September 1985 the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 6. The applicant’s chain of command recommended approval of his request and the appropriate separation authority approved the applicant’s request on 13 September 1985; he directed the applicant be issued a UOTHC discharge. 7. On 4 October 1985, he was discharged accordingly; he completed 6 years, 8 months, and 11 days. 8. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 9. His record shows he completed high school; one stop unit training (OSUT) earning military occupational skill (MOS) 11B (Infantryman); was awarded the Army Achievement Medal; Good Conduct Medal (2d Award); Overseas Service Ribbon; attended and completed Drill Sergeant School; highest rank he held was Sergeant (SGT). 10. 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. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements 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 and published DoD guidance for discharge upgrade requests. The Board considered the applicant’s statement, his record of service, that frequency and nature of his serious misconduct, the reason for his discharge and whether to apply clemency. The Board found no evidence of mitigating factors in-service for the serious misconduct and the applicant provided no post-service achievements or letters of reference in support of a clemency consideration. The Board determined, based on the preponderance of evidence, that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was 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. 8/5/2019 X x CHAIRPERSON x 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) 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 is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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 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.