ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190009779 APPLICANT REQUESTS: The applicant requests his general discharge under honorable conditions be upgraded to a fully honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Continuation Statement * 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 he was the confidant of a female Soldier who was repeatedly raped by first sergeant (1SG) W, after becoming aware of his closeness with the victim, 1SG W systematically mischaracterized his service with vague Article 15’s to discredit any accusations from me. He was later arrested a. 1SG G replaced 1SG W and soon he was involved in a sexual relationship with a female Soldier who served as his driver. This relationship was clearly in violation of the Uniform Code of Justice (UCMJ), but seemed consensual. He witnessed 1SG G fondling her when they were down range. The female Soldier saw him and obviously told 1SG G. He was confronted by the 1SG G and asked what he saw, he responded by saying, "nothing" and he was ordered to get on with his responsibilities. b. 1SG G also started systematically mischaracterizing his service to discredit any accusations from him. He was later arrested. In both instances he told others who advised him not to get involved. Many knew he was being unfairly targeted by the noncommissioned officers (NCO) mentioned, but they were unwilling to take a stand for fear of retaliation. c. He used the only avenue available to him to protect himself, "sick call." He was able to avoid whatever was being planned against him. 1SG G thought someone was helping him at the local clinic and had him sent to another clinic not realizing that the stress and fear he was causing had measurable physical symptoms, which would end in the same result no matter where he was sent, he received 48 hours of quarters and light duty. 1SG G was sure he was doing something to get this result and he made him have tests done at various clinics with different doctors. d. He told Captain P, who paid no attention, but managed to critique him on their complaints about him. Since basic training he was seen as a "motivator" and an encouraging asset to his fellow Soldiers. He was hard working and managed to contribute positively to his unit. He figured out a cost and effort savings solution to an on-going electrical issue with their ambulances that the mechanics couldn't figure out. It seemed that he was being discredited at every turn because of his knowledge of the wrongdoing of the 1SG’s. He saved the life of a suicidal dependent for which he received a letter of some sort. e. He was very proud to be a Soldier, and early in his career, before coming into knowledge of the rape, he was chosen to go before the battalion commander to compete for Soldier of the month. He was not selected, but he was told he lost by a coin toss. As a veteran he has no criminal record not even a parking ticket. He is married with 5 adult children, who are all doing well. He is the eldest of 10 sons. He has been a fine example (according to them) of a brother, father, and husband. He has been in business for himself since leaving the military (small business consulting firm). f. He has helped many ex-military members and he has no drug or alcohol abuse. He is bringing up this because typically when a person is a Soldier, their life and choices continue to reflect their military pattern. His only regret is his youthful inexperience prevented him from seeking better solutions. He requests that the Board "dig" into this mater, his life, and the lives of his accusers to see if there is cause for question. It is his hope that this will result in an upgrade of his discharge. 3. On 2 August 1983, the applicant enlisted in the Regular Army for 3 years. He held the military occupational specialty (MOS) of medical specialist. On 7 January 1984, he was assigned to Fort Carson, CO, with duties in his MOS. 4. His record contains 21 positive Counseling Forms that were used to rate him on numerous performance qualities (such as attitude, adaptability, motivation, responsibility, etc.) as either excellent, good, average, below average, or poor. In most instances he was rated as average. 5. His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on: * 27 July 1984 - for possessing fireworks in the billets area, on 26 July 1984. His punishment consisted of 8 days of restriction * 9 August 1984, for disobeying a lawful order to be to "at ease". His punishment consisted of 7 days of extra duty * 3 October 1984, failing to go to his appointed place of duty at the time prescribed. His punishment consisted of extra duty and restriction (to commence upon his return from leave on 12 October 1984) * 31 October 1984, for breaking restriction on 22 October 1984. His punishment consisted of reduction to private/E-2, a forfeiture of pay, and correctional custody for 7 days * 14 June 1985, for unlawfully striking a private first class in the stomach with his fist on 4 April 1985 and for disobeying a lawful order not to visit another Soldier that was in the hospital on 6 and 7 April 1985. His punishment consisted of reduction to private/pay grade E-1, a forfeiture of pay (suspended until 11 December 1985), and extra duty. 6. A medical statement, dated 1 July 1985, addressed To Whom It May Concern, from a Neurologist, at the U.S. Medical Department Activity, states “I have seen James Slack in my office and hospitalized him for three days for evaluation of headaches. My impression is his headaches are related to stress in his personal life. He is currently receiving medication and is being evaluated in the Mental Health Clinic.” 7. A letter, dated 3 July 1985, from a Marriage and Family Therapist, Family Life Center, Fort Carson states she had been seeing the applicant and his wife on a weekly basis since 6 May 1985. They were making a sincere effort to build a strong and healthy marriage and at the time the prognosis for success was good. It was her professional recommendation that the applicant be granted a hardship discharge for several reasons. a. First, the applicant and his wife were assigned to the same unit, many of their problems were related to work related incidents. The reverse of this was also true. Many of their marital problems were causing their performance at work to be less than expected. b. Secondly, she was concerned about the applicant’s physical welfare. The stress that he was experiencing at the present time could undoubtedly cause him physical illness if it continued at the present rate. One of her areas of expertise was stress management and the applicant was currently working to manage his stress more effectively. c. Finally, she had spoken to the applicant and his wife regarding their marital problems and discussed their options for the future in some detail. The decision to get out of the Army on a hardship discharge is not a hasty one, but a decision that has been carefully and rationally thought out over a period of time. Due to the above factors, she recommended a hardship discharge in order to most fully benefit the applicant and his family and also in the best interest of the Army. If there are any further questions regarding this matter, please do not hesitate to contact her. 8. On 3 July 1985, he was given a mental status evaluation. The examiner found he met the retention standards prescribed in AR 40-501 (Standards of Medical Fitness). The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings deemed appropriate by his chain of command. The Remarks section of this document states: “Service member was seen at Community Mental Health Services for psychiatric evaluation. Service member presents with no history of mental illness. No psychiatric illness is present at this time. Service member is psychiatrically cleared for any administrative action deemed appropriate by command.” 9. On 16 July 1985, the applicant was medically cleared for separation. 10. A General Counseling Form, dated 5 August 1985, showing between February and May 1985, he received numerous counseling and counseling statements for a lack of military bearing, personnel problems, interfering with job duties, failure to make designated formations, being disrespect toward superiors, a poor attitude, poor maintenance of equipment, and for not working well with others. 11. On 23 August 1985, his commander notified him he was initiating action to discharge him under the provisions of chapter 13, AR 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a general discharge under honorable conditions or an honorable discharge. The commander advised him of his available rights and cited the applicant’s unsatisfactory performance consisted of disobeying the lawful order of an NCO, violating a lawful general regulation, failing to go to his appointed place of duty at the time prescribed, and breaking restriction. His commander stated rehabilitation would not be in the best interest of the Army as it would not produce a quality Soldier. a. The applicant acknowledged the notification of separation and requested consultation with counsel and elected to submit statements in his own behalf. There is no evidence available to show he took any additional action or provided a further response. b. The applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service under the provisions of chapter 13, AR 635-200, due unsatisfactory performance. 12. On 26 August 1985, the appropriate authority waived the requirement for a rehabilitative transfer and directed that he be issued a general discharge under honorable conditions. This authority directed that he not be placed in the Individual Ready Reserve. 13. A letter, dated 27 August 1985, shows the Assistant Adjutant General stated the applicant’s separation was approved and the applicant would report to the Separation Transfer Point for separation processing on 28 August 1985 with the issuance of a General Discharge Certificate. 14. On 28 August 1985, he was discharged under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance. He completed 2 years and 27 days of active service that was characterized as under honorable conditions. 15. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely 16. The applicant contends he believed his 1SG’s were engaged in inappropriate relations with female Soldiers in the unit, possibly even rape. He also believes they knew that he was aware of what was going on and he was given NJP to discredit any accusations he might make. He states many other people knew what was going on and that he was being unfairly targeted by the NCO’s mentioned, but they were unwilling to take a stand for fear of retaliation. He requests that the Board "dig" into this matter, his life, and the lives of his accusers to see if there is cause for question. It is his hope that this will result in an upgrade of his discharge. a. On 28 August 1985, he was discharged, under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance. He received four NJP’s, and he was discharged for disobeying the lawful order of an NCO, violating a lawful general regulation, failing to go to his appointed place of duty at the time prescribed, and for breaking restriction. He completed 2 years and 27 days of his 3 year enlistment obligation. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. There is nothing in the available evidence to show the applicant’s 1SG did anything to discredit or retaliate against him for anything. 17. In reaching its determination, the Board can consider his petition and his service record in accordance with the published equity, injustice, or clemency guidance. 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, positive counseling statements as well as the frequency and nature of his misconduct, his marital issues, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for his misconduct; the applicant provided no additional evidence in support of his statement that he was a victim of retaliation. The Board found that the applicant made a statement but provided no additional 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely b. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. c. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 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. 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. ABCMR Record of Proceedings (cont) AR20190009779 9 1