BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20190009510 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from general, under honorable conditions to fully honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 214 (Certificates of Release or Discharge from Active Duty) * Memoranda of Support, dated 8 June 2015 and 29 October 2015 * Memorandum for Record, dated 6 July 2017 * Character Statement, dated 26 July 2017 * Memorandum, Major General, U.S. Army Maneuver Center of Excellence, Fort Benning, GA * Memorandum Deputy Assistant Secretary of the Army 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 every officer in his chain of command, from his company commander to the Commanding General of the Maneuver Center of Excellence, recommended that he receive an honorable discharge, because they knew his character and potential. They knew the actions which led to his administrative punishment were outside of his character and not indicative of who he was as a Ranger, officer, and leader. After the Human Resources Command (HRC) signed off on his honorable discharge, the Deputy Assistant Secretary of the Army overruled his commanders and ordered that he receive a general discharge under honorable conditions. This decision, considering his decade of service as a noncommissioned officer (NCO) and as an officer was arguably unjust. He requests that the Board upgrade his discharge based on the evidence of his service and character. 3. The applicant served honorably in the Regular Army, in an enlisted status, as an infantryman, from 25 August 2004 to 22 December 2007. During this period of service he served in Iraq, the specific dates are unknown. The highest rank/grade he achieved was sergeant/E-5. 4. The applicant executed an oath of office on 21 November 2013 and he was appointed a commissioned officer of the Regular Army. In 2014, he completed the Infantry Basic Officer Leader Course, Ranger Course, and the Airborne Course. On 21 May 2015, he was promoted to 1st lieutenant. On 1 November 2016, he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 75th Ranger Regiment, Fort Benning, GA. 5. A Law Enforcement Report-SIR, dated 19 December 2016, states the applicant met Ms. H at a restaurant while they were on a temporary duty (TDY) assignment at Fort Bragg, NC. The applicant and Ms. H left the restaurant and went to hotel room. SSG W stated Ms. H called him later in the night and told him the applicant attempted to sexually assault her. Ms. H was interviewed and stated the applicant attempted to remove her clothing and engage in sexual acts with her against her will while they were at the hotel. Ms. H stated she freed herself and departed the room. The applicant was interviewed and declined to provide a statement. a. This investigation was conducted jointly by the U.S. Army Criminal Investigation Command, Fort Benning and the Aberdeen Police Department, Aberdeen, NC. b. On 30 November 2016, CPT AM, Trial Counsel, Fort Benning, GA, opined probable cause existed to believe the applicant committed the offense of attempted sexual assault. c. No additional investigative efforts were required. There was sufficient evidence to provide to command for consideration of action. 6. A DA Form 268 (Report for Suspension of Favorable Personnel Actions), showing effective, 14 March 2017, the applicant was flagged pending adverse action. 7. While pending court-martial charges, on 31 May 2017, the applicant consulted with legal counsel and was advised of the procedures and rights available to him. Following consultation with legal counsel, he offered to: a. Plead guilty at a General Officer Article 15, to charge III and its specification. b. As a condition precedent to this offer, he agreed to unconditionally waive his right to an Article 32 Hearing and plead guilty to the above mentioned charge at a General Officer Article 15. He formally requested that all attachments to this plea be reviewed prior to any decision being made on whether to accept or deny this plea. c. If his plea was not accepted the offer was null and void and he reserved the right to a trial by court-martial. d. In exchange for his guilty plea at a General Officer Article 15, the convening authority agreed not to refer any of the charges and specifications preferred against him to a court-martial. e. He acknowledged that counsel had advised him of the meaning and effect of pleading guilty at a General Officer Article 15 and the meaning and effect thereof. No person(s) had made any attempt to force him into this offer or to plead guilty. 8. On 6 July 2017, Commanding General EJW, U.S. Army Maneuver Center of Excellence reviewed the investigation pertaining to the allegations against the applicant (sexual assault and assault consummated by battery) and in consideration of the recommendation of the trial counsel determined there was insufficient evidence to prosecute the applicant for these violations. Therefore, the preferred charges were dismissed without prejudice. 9. A memorandum, subject: Initiation of Elimination (Applicant’s Name), dated 6 July 2017, shows he was required to Show Cause for Retention on Active Duty under the provisions of paragraph 4-2(b)(5), acts of personal misconduct, and paragraph 4-2(b)(8), conduct unbecoming an officer due to his misconduct, moral or professional dereliction. He was advised the bases for elimination was: a. On 4 August 2016, you wrongfully solicited SSG W to obstruct justice, by instructing him to communicate certain information to Ms. JH in attempts to hinder her reporting an allegation of sexual assault against yourself. Conduct unbecoming an officer as indicated by the above misconduct. In conjunction with this action, a Suspension of Favorable Personnel Actions Flag (DA Form 268) has been initiated according to AR 600-8-1. b In accordance with AR 600-8-24, Paragraph 4-24, you may submit a rebuttal with all supporting documentation to show how you have either successfully overcome the reason for the Show Cause Proceeding or a statement explaining your past actions/behavior. c. Submit your request for resignation in lieu of elimination according to AR 600-8- 24, Chapter 4. The request may not include an effective date since the effective date will be determined in accordance with AR 600-8-24, Paragraph 4-5. d. Apply for retirement in lieu of elimination if otherwise eligible, according to AR 600-8-24, Chapter 4 and Chapter 6. e. If a discharge under other than honorable conditions is recommended, you may request appearance before a Board of Inquiry. f. You must acknowledge receipt of this notice in writing and exercise one of the available options in Paragraph 5 above no later than 30 days from receipt of this action. g. Your acknowledgement should be in the format provided in AR 600-8-24, Figure 2-4. You will include your respective election from paragraph 5 above as an enclosure to your acknowledgment. Your request must be staffed through your chain of command and endorsed by your respective “GOSCA” prior to staffing to the Human Resources Command for final processing. h. I am recommending that you be discharged with a service characterization of general, under honorable conditions.: i. If an honorable or general discharge is recommended, your case will be forwarded directly to the Human Resources Command for submission to Deputy Assistant Secretary (Army Review Boards), without referral to a Board of Inquiry. If an under other than honorable conditions discharge is recommended and you do not submit a resignation in lieu of elimination or request to retire in lieu of elimination, your case must be referred to a Board of Inquiry, though your presence at the proceeding is optional. The least favorable discharge characterization you may receive is an under other than honorable conditions. The final decision on the type of discharge will be determined by Headquarters Department of the Army, as it does for all officers. 10. On 17 July 2017, the applicant submitted a memorandum for consideration with his pending Article 15, which he states he takes full responsibility for his actions on 4 August 2016. a. Immediately upon being falsely accused of attempted sexual assault, he should have contacted his chain of command and instructed his fellow Rangers, who were with him to sever all communication with the person accusing him. For failing to do this, he was wrong. However, he never sexually assaulted anyone. The actions he took after the false accusation were wrong, but he was in a state of shock after being falsely accused of a crime that he did not commit. b. He met the person who accused him of attempting to sexually assault her while training at Fort Bragg in preparation for deployment. They had sex the night after they met in a hotel room. They stayed in contact over the next few weeks and planned on seeing each other again. When he returned to Ft. Bragg a few weeks later, they met at a local restaurant and ended up getting a hotel room together later that night. While staying at the hotel, she admitted that she currently had a boyfriend who was formerly in the military. In response, he told her that he was no longer interested in having a relationship with her. Shortly after that, she left the hotel room very upset. c. The next morning, he was told by a fellow Ranger who was also in contact with this person, that she was alleging he attempted to rape her. He was completely shocked at the allegation. He did not attempt to rape anyone. This Ranger told him the boyfriend was going to report the alleged attempted rape directly to the Joint Special Operations Command (JSOC) Commander. He told his fellow Ranger to tell her the incident had already been reported to his chain of command to prevent her from reporting the false allegation directly to a three-star general. d. His goal was to protect both his platoon, who was conducting sensitive training at Fort Bragg in preparation for deployment and his battalion's command team from being blindsided by the JSOC Commander. He did not want this false allegation to negatively impact his unit's mission or his career. e. He reported the false allegations as soon as he returned to Fort Benning, which was a little more than 24 hours later. He personally went into his company commander and told him what happened. At no time did he order anyone to tell this person not to report the incident to law enforcement. He simply did not want the incident reported to the JSOC Commander before he could tell his company commander, face to face, what was going on. f. This false allegation has ruined his career. He had planned on retiring as an Army Officer. Since this allegation, he had been flagged, investigated, charged with sexual assault, and was told that if convicted of sexual assault he could spend the rest of his life as a sex offender. This entire incident had been absolutely devastating for him. His military career was over, he planned on submitting his resignation in lieu of separation. After he was separated he planned to attend law school. g. He asked that his outstanding performance throughout his military career both as an Infantry officer and as an enlisted infantryman, dating back to 2004 be considered. He excelled as an infantryman, sniper, sniper team leader, infantry platoon leader, and Ranger platoon leader. This recent demonstration of poor judgment was an outlier among a history of sound decision making and dedicated service. h. Regarding his punishment, he asked the following be considered before making any judgment. (1) A formal letter of reprimand was appropriate given his actions. (2) Due to his current financial situation, namely the child support he paid for his 9-year old son, he respectfully asked that any financial punishment be suspended. He attached a financial worksheet to explain his circumstances. His financial document shows he paid $2,000 a month for child support. (3) Due to the fact that his 9-year old son lived locally and he was a major part of his daily life, he respectfully asked that any restriction or extra duty also be suspended. (4) If he was found guilty, and received punishment that deprived him of his liberty, under the provisions of AR 27-10 (Military Justice), chapter 3, he requested a delay of performance of any punishments involving deprivation of liberty pending the decision on the appeal should he choose to appeal. 11. On 27 July 2017, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for wrongfully soliciting a staff sergeant (SSG) to obstruct justice by instructing him to communicate information to Ms. H in an attempt to hinder her reporting an allegation of sexual assault against him to wit giving false information about the reporting process of the allegation of sexual assault to Ms. H, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. His punishment consisted of a forfeiture of pay (suspended until 27 January 2018) and a written reprimand. He did not appeal the punishment. The NJP Record of Proceedings shows this document would be filed in the performance section of ho official military personnel file (OMPF). However separate filing instructions shows this document was designated to be filed in the restricted section of his OMPF. 12. On 27 July 2017, he also accepted a General Officer Letter of Reprimand for, on 4 August 2016, wrongfully soliciting a subordinate, a SSG, to obstruct justice by instructing him to lie and intimidate a civilian by providing false information about the process of reporting a sexual assault. Additionally, This document states: a. Your conduct was an attempt to make her believe that your chain command was aware of her allegation against you and to dissuade her from reporting the sexual assault. b. As an officer, you are charged with the responsibility of setting the example for subordinates. You have violated the Army values and eroded my trust and confidence in your leadership as an officer. I seriously question your judgment and potential for military service. Your actions have embarrassed your chain of command, and disgraced the United States Army, the 75th Regiment, and yourself. c. This reprimand was imposed as a punitive measure. 13. On 4 August 2017, subsequent to receiving legal counsel, the applicant voluntarily submitted his resignation from the Army, under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), chapter 4. He acknowledged he had been advised by memorandum that he was being recommended for involuntary separation from active duty and he had been afforded the opportunity to consult with legal counsel. 14. His chain of command recommended acceptance of the applicant’s resignation, in lieu of a prolonged administrative elimination process. On 31 August 2017, Major General, EJW, U.S. Army Maneuver Center of Excellence recommend approval of the applicant’s request for resignation in lieu of elimination, and that he be separated from the United States Army in accordance with AR 600-8-24, paragraph 4-2(b)(5) and paragraph 4-2(b)(8) with an honorable discharge. 15. On 19 September 2017, his physical profile shows PULSHES of all “1’s” and he was determined to be qualified for service. * P - Physical capacity/stamina * U - Upper body * L - Lower body * H - Hearing * E - Eyes * S - Stability/psychiatric 16. On 11 November 2017, an Ad Hoc Review Board convened and recommended the applicant's elimination with the issuance of a general discharge, under honorable conditions. This board found: a. The applicant had no behavioral health contact in AHLTA until after he got into trouble. An AHLTA diagnoses included adjustment disorder with depressed mood and major depressive disorder MOD). The diagnosis of MOD was made by battalion surgeon, not by a psychiatrist; this review of the record indicates the applicant has adjustment disorder with depressed mood, not MOD. The applicant has some post- traumatic stress disorder (PTSD) symptoms but not nearly enough for a PTSD diagnosis. b. Even if he had a PTSD diagnosis, it would not be mitigating for the offenses for which he is accused. No Army Substance Abuse Program involvement, but some Family Advocacy Program involvement with ex-wife claiming he was emotionally abusive to her when he came to pick up his 8 year old son. This review indicates there are no mitigating behavioral health diagnoses. 17. On 7 November 2018, the Deputy Assistant Secretary (Army Review Boards) denied his resignation and approved the Ad Hoc Review Board’s recommendation for the issuance of a general characterization of service. Accordingly, the applicant was discharged on 3 August 2018. 18. His DD Form 214 shows he was discharged in accordance with AR 600-8-24, paragraph 4-2b, due to "Unacceptable Conduct." He completed 4 years, 8 months, and 13 days of active service. He also completed 3 years, 6 months, and 26 days of prior active service. His awards are listed as: * Army Commendation Medal * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War On Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Army Service Ribbon * Overseas Service Ribbon * Combat Infantryman Badge * Ranger Tab * Parachutist Badge 19. He provides in support of his request: a. Two memoranda, dated 8 June 2015 and 29 October 2015, recommending him for acceptance into the 75th Ranger Regiment. b. A Memorandum for Record, dated 6 July 2017, that was a part of his separation processing that shows the Commanding General, U.S. Army MANEUVER Center of Excellence reviewed the investigation pertaining to the allegations against him for sexual assault and assault consummated by battery, and in consideration of the recommendation of the trial counsel determined there was insufficient evidence to prosecute him for these violations. Therefore, the charges were dismissed without prejudice. c. Character Reference Statement from Lieutenant Colonel WBH, dated 26 July 2017, who states he has known the applicant since 2005. He knows the applicant as a leader and man of character, both in combat and in garrison. (1) During Operation Iraqi Freedom, the applicant served as a senior NCO in the Headquarters and Headquarters Company (HHC), 1st Battalion, 12 Infantry Scout Platoon and he was instrumental in re-establishing the battalion’s mission focus following the combat death of the HHC Commander during combined patrols with elements of the Iraqi Army Brigade in Baghdad. During this time of loss, the applicant provided the right balance of Soldier care and mission accomplishment by displaying a level of maturity senior to his rank and position. He was instrumental in his incorporation into the company mission set, as the new commander, who replace the deceased commander. The applicant helped provide continuity of mission focus during the transition. The applicant was and is a constant professional and combat proven leader, who participated in operations to advise, assist and accompany the “516th IA Brigade” to clear nearly 10,000 houses during their year in central Baghdad. His conduct in the harsh conditions of Iraq, during a period of loss, increased sectarian violence and unrest he demonstrated an ability to be a mature and extremely capable leader, who he relied on again and again during the toughest missions. (2) Unsatisfied with his position as an NCO, he sought the more difficult path through his application for the Officer Candidacy Program where he excelled. While an OCS Candidate, the applicant sought him out as the S-3 for 1st Battalion, 15th Infantry, on Kelley Hill, [Fort Benning] and appealed to him for a position as a rifle platoon leader within the battalion. Having served with him previously, he made recommendations to the battalion commander who readily agreed to bring the applicant into the battalion. The applicant easily became the leader among the lieutenants by sharing his experiences and mentoring 13 lieutenants within the battalion awaiting platoon leader time. Prior to leading a platoon, the applicant successfully graduated Ranger School and quickly became one of the top performers with in the battalion, leading his platoon through several emergency deployment readiness exercises and successfully leading his platoon as a Quick Reaction Force supporting “U.S. ARNORTH” as part of the Rapid Reaction Force during “3/3 ABCTs” regional alignment to “NORTHCOM.” (3) The applicant an officer of the highest caliber, his common sense approach to complex problems makes him an asset to any organization in which he serves. He entrusted the applicant with the lives of the Soldiers in his platoon as well as his own life at times and would readily do so again. The applicant uses the Army Values as his standard and always makes the hard right decision over an easy wrong decision. His integrity was impeccable. His continued service to our Nation is assuredly to the benefit of the Army and he would readily serve with him again. 20. He also provides two memoranda that were a part of his separation processing: a. Memorandum, dated 31 August 2017, from the Major General, U.S. Army Maneuver Center of Excellence recommending approval of the applicant’s request for resignation in lieu of elimination under the provisions of 600-8-22 with an honorable discharge. b. Memorandum from the Deputy Assistant Secretary of the Army, dated 7 November 2018, denying his resignation and approving his elimination from the Army under the provisions of 600-8-22, due to misconduct and moral or professional dereliction with a general discharge. 21. Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of officer personnel. Chapter 4 of this regulation prescribes reasons and procedures for eliminating officers for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. Paragraph 4-2b specifically governs elimination for misconduct, moral or professional dereliction or in the interests of national security. 22. Regarding his contention that his entire chain of command recommended that he receive an honorable discharge. The entire chain of command recommended acceptance of his resignation, but the only member of the applicant’s chain of command who recommended the issuance of an honorable discharge was Major General EJW. 23. The applicant served as both an NCO and as an officer, he also served in combat as an NCO with a glowing recommendation for acceptance into the 75th Ranger Regiment from his pervious commander. The applicant believes the general discharge he received was unjust. Therefore, his general discharge should be upgraded to fully honorable based on the evidence of his service and his character as it was known prior to the incident for which he was discharged. 24. In reaching its determination, the Board can consider the applicant's petition, his service record, and his submissions in light of the published Department of Defense 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 statement, his record of service, the frequency and nature of his misconduct, NJP and a GOMOR, initiation of elimination proceedings, his request for resignation and the denial of that request and the reason for his separation. The Board considered the character reference statement and the review by an Ad Hoc Review Board. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon 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. 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, 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 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel. Chapter 4 of this regulation prescribes reasons and procedures for eliminating officers for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. Paragraph 4-2a of the regulation governs elimination for substandard performance of duty. Paragraph 4-2b specifically governs elimination for misconduct, moral or professional dereliction or in the interests of national security. Chapter 1 states: a. An officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. b. An officer will normally receive an under honorable conditions characterization of service when the officer’s 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. His 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009510 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009510 12 ABCMR Record of Proceedings (cont) AR20190009510 11