IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190010267 APPLICANT REQUESTS: The applicant requests upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * Military Defense Counsel's business card * Military Defense Counsel's memorandum to the applicant's chain of command * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 his discharge was improper because there were several legal errors; he provides his military defense counsel's memorandum, which details the errors made by the applicant's chain of command. 3. The applicant's service records show: a. On 28 November 1989, the applicant enlisted into the Regular Army; following the completion of initial training, orders assigned him to Germany, and he arrived on or about 14 May 1990. b. On or about 23 December 1990, the applicant deployed with his unit to Saudi Arabia as part of Operations Desert Shield and Desert Storm; he redeployed to Germany on or about 17 May 1991. On or about 16 October 1991, he completed his tour in Germany, and orders reassigned him to Fort Hood, TX; he arrived at Fort Hood on or about 7 November 1991. Orders subsequently reassigned him to Germany, and he arrived in Germany on 22 December 1993. c. On 30 October 1995, while assigned in Germany, the applicant deployed with his unit to Macedonia. The applicant's chain of command promoted him to sergeant (SGT), effective 1 November 1995. On 30 April 1996, he redeployed to Germany. e. He departed Germany, on or about 11 December 1996, and transferred to Fort Riley, KS; he arrived at Fort Riley on 3 February 1997. On 19 September 1998, local civilian police near Fort Riley arrested the applicant for driving under the influence (the applicant's service record is void of other information about this arrest). On 13 July 2000, the applicant again immediately reenlisted. f. On 13 November 2000, local police from the Fort Riley vicinity arrested the applicant for improper passing and driving under the influence. Breathalyzer results revealed a blood alcohol content (BAC) of 0.135 percent (Kansas' BAC limit was 0.08 percent). g. On 27 November 2000, the commanding general of the 24th Infantry Division and Fort Riley issued the applicant a general officer memorandum of reprimand (GOMOR), in which he reprimanded the applicant for driving a vehicle when his BAC exceeded Kansas' legal limits. On 7 December 2000, the applicant acknowledged receipt of the GOMOR and indicated his intent to provide a response within 72 hours; however, as of 5 January 2001, the applicant had failed to submit his rebuttal, and his chain of command deemed his inaction as a waiver of rights. On 16 January 2001, the GOMOR imposing official directed the GOMOR's placement the applicant's official military personnel file (OMPF). h. Orders reassigned the applicant to a recruiting battalion in Houston, TX; he arrived on 20 May 2001. On 26 June 2002, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ); the applicant's commander imposed an oral reprimand as punishment. The charges against the applicant were: failing to obey his first sergeant's order to tape Delayed Entry Program (DEP) Soldiers on a weekly basis during the period 11 March 2001 to 17 June 2002; failing to obey his company commander's order to tape DEP Soldiers on a weekly basis from 5 April until 17 June 2002; failing to obey a general regulation by not taping DEP Soldiers weekly between 11 March 2001 and 17 June 2002; and being derelict in his duties by failing to tape DEP Soldiers weekly for the period 11 March 2001 until 17 June 2002. i. On 12 February 2003, Houston civilian police arrested the applicant after he was involved in a minor auto accident while driving a government-owned-vehicle (GOV); based on a field sobriety test, the police suspected the applicant of driving while intoxicated. The applicant was transported to a civilian jail, where he refused a breathalyzer/BAC test. j. On 23 March 2003, the deputy commanding general (DCG), U.S. Army Recruiting Command (USAREC), issued the applicant a GOMOR for driving a GOV while under the influence of alcohol, being involved in a traffic accident, and refusing to submit to a lawfully requested BAC test. On 28 March 2003, the applicant acknowledged the GOMOR and stated he would submit a statement in rebuttal. On 10 April 2003, the applicant provided his response to the GOMOR; he essentially stated, after reading the relevant policy letter, he understood his failure to take a BAC test constituted a basis for the GOMOR. However, he disputed the portion of the GOMOR that alleged he was driving drunk; the applicant refused to admit he was drunk, and argued his chain of command would learn what happened, once the civilian court heard his case. k. On 11 April 2003, the applicant pleaded no contest before the civilian court in exchange for probation. As a result, the court took the following actions: reduced the charge from driving while intoxicated to reckless driving, issued a $250 fine, and directed the applicant's confinement in the county jail for 30 days, after which the applicant was to be placed on probation for 6 months; the court deferred further proceedings without entering a finding of guilt, and placed the applicant under community supervision. l. At about 0300 on 2 May 2003, the applicant was involved in a privately-owned vehicle (POV) accident off-post; witnesses observed the applicant accelerating from a traffic light, veering off the road, and hitting a tree. Witnesses found the applicant unconscious; on arrival, the civilian police noticed the strong smell of alcohol. The applicant was transported to the local hospital for treatment of a hip injury. The police later questioned the applicant, and he admitted to having two beers, but he refused to take a BAC test or submit a blood sample. The applicant subsequently underwent surgery to repair his hip. m. On 9 May 2003, the GOMOR imposing official directed the GOMOR, dated 23 March 2003, to be filed in the applicant's OMPF. n. At some point prior to 17 June 2003, the applicant's leadership tasked an officer with conducting an informal investigation into the applicant's accident. On 17 June 2003, the investigating officer (IO) reported the following: (1) On the afternoon of 1 May 2003, the applicant attended a funeral service for a fellow Soldier; after the funeral, the applicant, along with some other Soldiers, went to a restaurant where they ate food and drank alcohol. Around 0100, two of the Soldiers walked the applicant to his POV; the two Soldiers noticed the applicant was intoxicated, so they urged him not to drive. The two Soldiers offered to drive the applicant home, but the applicant refused, got in his POV, and drove off. (2) At about 0300, the local civilian police were dispatched to the applicant's accident scene; the police cited alcohol as a contributing factor for the accident. After the applicant refused to take a BAC test, the police obtained a subpoena for a blood sample; the results revealed the applicant's blood alcohol level was three times the legal limit. The police subsequently arrested the applicant and charged him with driving while intoxicated. (3) The IO recommended the applicant receive an evaluation for anger management, as well as an assessment for drug and alcohol abuse. The IO further recommended the applicant's elimination from the service. o. On 21 June 2003, the DCG, USAREC, issued the applicant a GOMOR for being involved in a one-car accident, and because the civilian police had cited the applicant for driving while intoxicated; in addition, the GOMOR stated the applicant had refused to submit to a lawful BAC test. The applicant acknowledged receipt of the GOMOR on 3 July 2003 and indicated he would provide a written rebuttal. (1) On 11 July 2003, the applicant submitted his written response, stating, in effect: (a) Due to the severity his injuries, he was unconscious following the accident; as a result, he was unaware of what was going on. According to the doctor, the applicant was sedated from the time the ambulance picked him up until he regained complete consciousness in the hospital. (b) The applicant affirmed he was fully aware of the consequences of refusing the BAC test, and he "would take full responsibility if he did so by being 100% conscious of (his) actions; but, (he) did not recall either coming to the hospital, talking to the doctor or police officer that stated (his) refusal." (2) On 4 August 2003, the GOMOR imposing official directed placement of the 21 June 2003 GOMOR in the applicant's OMPF. p. On 2 September 2003, the separation authority appointed an administrative separation board. (1) The appointment memorandum showed the names of primary board members (three officers: a board president and two members), as well as the name of the board's recorder; additionally, the memorandum identified two officers as alternate presidents, four officers as alternate members, and three senior noncommissioned officers as enlisted alternates. (2) Paragraph 3 stated, "The board, when assembled for hearings, will consist of the three regular members noted above (the 'primary' members) and the recorder." Paragraph 3 further stated, "Alternate members will automatically serve on the board in the sequence listed in the absence of a primary member. In the event that a request for an enlisted member is approved, the junior officer will be automatically excused and replaced with an alternative enlisted member in the sequence listed." The memorandum did not limit the role of an enlisted alternate member to only serving when so requested by a respondent. q. On 9 September 2003, a Community Behavioral Health Service psychologist stated the following in a mental status evaluation of the applicant: (1) The applicant denied a personal psychiatric history prior to his reckless driving and driving while intoxicated incidents; since his arrest, the applicant affirmed he felt depressed and was being treated by a psychiatrist. (2) The evaluator's diagnostic impressions were: alcohol abuse and adjustment disorder with depressed mood. The evaluator stated there was no evidence of a behavioral health condition that warranted disposition through military medical channels, and the applicant was psychiatrically cleared for administrative separation action. However, the evaluator recommended referral into the Army Substance Abuse Program (ASAP) for an alcohol dependence assessment. r. On 10 September 2003, the applicant's commander advised him in writing of his intent to separate the applicant under chapter 14 (Separation for Misconduct), section III (Acts or Patterns of Misconduct), paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander's action was based on the following serious offenses: * 13 February 2003 – applicant recklessly operated a GOV, which resulted in a vehicle accident; failed a field sobriety test, refused a BAC test, and was ultimately convicted by a civilian court; a GOMOR was issued for this incident * 2 May 2003 – applicant was involved in a single-vehicle accident; refused a BAC, but blood test results showed a BAC of 0.284 percent; GOMOR also issued for this incident, and applicant was, at that time, pending trial s. On 14 October 2003, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He affirmed he would conditionally waive his right to an administrative separation board, contingent on the separation authority approving a character of service no less favorable than under honorable conditions (general). In the event the separation authority did not approve his conditional waiver, he requested to personally appear with counsel before an administrative separation board. He elected not to submit statements in his own behalf. t. On 12 November 2003, the separation authority denied the applicant's request for a conditional waiver and directed the convening of an administrative separation board. (1) On 26 November 2003, the board's recorder advised the applicant in writing of the date, time, and location of the administrative separation board hearing; in addition, the memorandum stated the government's intention to call two witnesses (Lieutenant Colonel H__ and Captain O__). (2) Prior to the board's convening, the board's recorder published an undated memorandum stating one of the primary members, and all four of the alternate members, would not be available to participate in board proceedings. u. The board convened on 20 February 2004, and the applicant was present with his counsel. (1) During the hearing, the applicant's counsel raised the following objections: (a) Counsel objected to Command Sergeant Major (CSM) M__ serving as a board member. Counsel argued, rather than drawing from the list of enlisted alternates, the board's appointment memorandum instead required the appointing authority to designate additional officers as board members when those initially identified were unavailable. After consulting with the board's legal advisory, the board's president chose to retain CSM M__ as a board member. (b) When Sergeant First Class (SFC) L__ was called to testify, counsel objected on the grounds the applicant had not been given reasonable notice (because SFC L__ had not been named as a government witness in the 26 November 2003 notification memorandum). Following legal consultation, the board president allowed SFC L__'s testimony. (2) After reviewing evidence and hearing testimony, the board determined the applicant had committed serious offenses warranting separation and recommended an under other than honorable conditions character of service. v. The applicant provides a 27 February 2004 memorandum, prepared by his defense counsel and showing the subject: Notice of Legal Error in the Administrative Separation Board – [applicant]. Counsel stated, in effect: (1) Regarding objections raised during the hearing: (a) Because the board's appointing memorandum separated board alternates into two lists (one officer and the other enlisted), CSM M__ (named on the list of enlisted alternates) should not have been allowed to serve as a board member. Counsel maintained enlisted alternate members could only serve when so requested by a respondent (i.e. the applicant); the applicant never made such a request. While conceding all officer alternates were unavailable, counsel nonetheless contended the board's failure to grant counsel's request to remove CSM M__ was a plain legal error that prejudiced the applicant. (b) SFC L__ was permitted to testify without the government giving the reasonable notice required by AR 635-200; the government failed to identify SFC L__ as a witness until the day of the applicant's hearing and, while initially sustaining counsel's objection, the board president subsequently changed his mind and allowed SFC L__'s testimony. Although it was true counsel had an opportunity to interview SFC L__ the morning of the hearing, simply conducting an interview was not enough to launch an adequate defense; SFC L__ testified as to the applicant's conduct at the police station and, due to the short notice, counsel was unable to then interview police officers and others at the police station who may have offered exculpatory evidence to counter SFC L__'s testimony. As a result, the applicant's right to a fair hearing was substantially prejudiced. (2) Counsel further asserted CSM M__'s behavior during the hearing indicated a predetermined outcome, and a refusal on her part to consider the totality of the evidence. On her arrival at the hearing, CSM M__ began asking when she could leave, stating she had to depart in sufficient time to drive home. As the hearing progressed, CSM M__ began to work on other tasks; during telephonic testimony, she was writing numbers and sketching charts that bore no relevancy to the proceedings. At one point during important testimony, CSM M__ was observed pushing a note to the board's recorder, who then attempted to push the note back; counsel later learned the note was the CSM's request to leave and return home. CSM M__'s actions were callous and reflected her lack of concern for a Soldier who had served over 14 years on active duty, and for whom the outcome of the hearing meant the possible loss of benefits, the inability to retire from the Army, and the likelihood of having to suffer the stigma associated with an under other than honorable conditions character of service. w. On 3 May 2004, the separation authority approved the administrative separation board's findings and recommendations, and directed the applicant's discharge under other than honorable conditions; in addition, the separation authority ordered the applicant's reduction in rank to private/E-1. On 12 July 2004, the applicant was discharged accordingly. The applicant's DD Form 214 shows he completed 4 years of his last reenlistment contract. Although the remarks section of the DD Form 214 reflects his continuous honorable active service from 19891006 through 19980622, it does not show his periods of deployment to Saudi Arabia and Macedonia. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal (5th Award) * Joint Meritorious Unit Award * Army Good Conduct Medal (4th Award) * National Defense Service Medal (2nd Award) * Southwest Asia Service Medal with three bronze service stars * Armed Forces Service Medal * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Kosovo Campaign Medal * Global War on Terrorism Service Medal * Inter-American Defense Board Medal and Ribbon * United Nations Medal * North Atlantic Treaty Organization Medal * Kuwait Liberation Medal-Saudi Arabia * Kuwait Liberation Medal-Government of Kuwait * Driver and Mechanic Badge with Driver-W (wheeled vehicle) Component Bar * U.S. Army Recruiter Badge 4. Per AR 635-200, commanders were to initiate separation action against Soldiers who had committed serious offenses for which one of the maximum punishments, per the Manual for Courts-Martial (MCM), was a punitive discharge (i.e. bad conduct or dishonorable); drunken driving (Article 111, UCMJ) included a punitive discharge among its maximum punishments. a. The applicant essentially argues his discharge was improper due to several legal errors; specifically, an enlisted board member was not removed, despite objections by the applicant's counsel; a government witness testified, over defense counsel's objection, without the applicant being given reasonable notice, and the enlisted board member behaved in a manner was prejudicial to the applicant. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and the applicant's evidence and 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 statement, his record of service to include deployment, the frequency and nature of his misconduct, multiple GOMORs, his accidents, his arrest and civil court conviction, the evaluation by the Community Behavioral Health Service psychologist the outcome of an administrative separation board and the reason for his separation. The Board found insufficient evidence of in-service mitigation or procedural errors to overcome the multiple instances of 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. The Board concurs with the corrections stated in the Administrative Note(s) below. 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 : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, with the exception of the corrections stated in the Administrative Note(s) that follow, 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated, for Soldiers who deployed with their unit during their continuous period of active service, item 18 (Remarks) of the DD Form 214 was to include the statement "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" entered. 2. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows the following deployments: * Saudi Arabia – 19901223 to 19910517 * Macedonia – 19951030 to 19960430 3. As a result, amend the applicant's DD Form 214, ending 12 July 2004, by adding the following comments to item 18: "SERVICE IN SAUDI ARABIA FROM 19901223 to 19910517"//"SERVICE IN MACEDONIA FROM 19951030 to 19960430." 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, Appendix 12 (Maximum Punishments Chart), in effect at the time, showed punitive discharges as available maximum punishments for the following UCMJ violations: * Article 111 (Drunken Driving – Cases Resulting in Personal Injury) – dishonorable and bad conduct discharges * Article 111 (Drunken Driving – Cases Not Involving Personal Injury) – bad conduct discharge * Article 112 (Drunk on Duty) – bad conduct discharge * Article 134 (General Article – Drunkenness – Reckless Endangerment) – bad conduct discharge 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010267 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010267 11 ABCMR Record of Proceedings (cont) AR20190010267 10