IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190014709 APPLICANT REQUESTS: * an upgrade of his bad conduct discharge to an honorable discharge * to change his narrative reason from as a result of court-martial to Secretarial authority APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Brief in Support, undated * Exhibit (Ex.) 1 –– DD Form 214 (Certificate of Release or Discharge from Active Duty), with separation date 16 May 1989 * Ex. 2 ––DA Form 2-1, one of four pages * Exs. 3-5 –– Three Award Certificates * Exs. 6-7 –– Two DD Forms 458 (Charge Sheets), one page each * Ex. 8 –– Panama City Police Department Report, dated 8 September 1987 * Exs. 9-14 –– Excerpt from Court-Martial Record of Trial (ROT) * Exs. 15-16 –– Stipulations of Expected Testimony, dated 21 March 1988 and 1 April 1988 * Ex. 17 –– Criminal Investigation Division Laboratory Report, dated 1 March 1988 * Exs. 18-20 –– Excerpt from the Court-Martial ROT * Ex. 21 –– Applicant?s Résumé * Ex. 22 –– Gulf Coast Community College Certificate of Training, dated 14 October 1988 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. Counsel for the applicant states: a. Statement of Facts (1) The applicant enlisted in the U.S Army on 26 June 1985 as a Cannon Fire Direction Specialist (13E10). See Ex. 1. The applicant served honorably and with distinction for the vast majority of his Army career, including a year-long rotation to Korea. See Ex. 2. During his military service, he attained the rank of Specialist (SPC)/E-4 and received numerous awards and decorations. See id. These awards include: Army Achievement Medal; Army Service Ribbon; Overseas Service Ribbon; and two Certificates of Achievement from his unit. See Exs. 1 & 3 - 5. Although the vast majority of the applicant's service was honorable, on 20 November 1987, he was charged with making a false official statement in violation of Article 107, UCMJ (Uniform Code of Military Justice), and willful destruction of private property in violation of Article 109, UCMJ, while stationed at Fort Sill, OK. See Exs. 6 & 7. (2) The applicant requested leave to attend his cousin's funeral in Florida, and while there he was involved in a self-defense shooting during an altercation. See Ex. 8. No charges were filed by civilian police against the applicant but there was confusion over whether the applicant was told by the civilian police to remain in Florida during the civilian investigation. See Ex. 9. The applicant called to notify his chain of command that he would not be able to return to Fort Sill by the end of his leave and the applicant's chain of command called the civilian police to verify this. See id. The civilian police stated he was free to return to Fort Sill; however there was conflicting evidence from several witnesses that the applicant had been told to remain in Florida. See id. (3) Within a month of his return to Fort Sill, the applicant was interviewed by a military police investigator for throwing paint on his platoon leader's car. See id. An investigation was conducted and alleged that the applicant had committed these acts between 9 August 1987 and 1 November of 1987. See Exs. 6 & 7. Resultantly, a special court-martial was convened and the applicant pled not guilty to both charges. See Ex. 10. He was found not guilty of making the false statement but found guilty of destruction of private property. See id. On 4 April 1988, he was sentenced to a reduction in rank to E-1, confinement for two months, forfeiture of $400 pay per month for two months, and a bad conduct discharge. See Ex. 12. (4) The applicant was discharged on 16 May 1989. See Ex. 1. He received a bad conduct characterization of service, narrative reason for separation of "Court- Martial, Other," and separation code of "JJD." See id. He served a total of 3 years, 10 months, and 20 days (DD Form 214 shows 3 years, 9 months, and 5 days) of active service in the Army. See id. b. Argument (1) Jurisdiction –– The Secretary of the Army may correct any military record when it is "necessary to correct an error or remove an injustice." 10 U.S.C. § 1552. For relief to be granted, an applicant must demonstrate the existence of an error or injustice that can be remedied effectively through correction of an applicant's military record according to Army Regulation (AR) 15-185. Applicants seeking relief from a bad conduct discharge issued as a result of a court-martial are limited to clemency matters. An applicant has the burden of providing sufficient evidence of the averred error or injustice. (2) Timeliness –– A request to correct a military record must be made within three years of the discovery of the alleged error or injustice, however this statute of limitations may be waived if it would serve the interests of justice for a case to be decided on the merits. Here, it is respectfully submitted that the applicant suffered an injustice and that the applicant's case should be determined on the merits due to the level of this injustice he suffered by improper military police techniques, bias by the applicant's chain of command, and disregard by the military judge of exculpatory evidence. The applicant applied to this honorable Board previously and was denied relief. (3) Clemency Matters –– a) The applicant seeks reconsideration of his application for relief to this honorable board based on evidence not included in his first application, which was submitted prior to representation of this counsel. There is substantial evidence that the applicant suffered a severe injustice prior to his special court martial caused by improper military police interview techniques. There is also substantial evidence that throughout his special court-martial held on 4 April 1988, the applicant suffered a severe injustice due to his chain of command's bias against him and the complete disregard of exculpatory evidence by the military judge. While the applicant rightly was found not guilty of making the false statement about not being free to leave the state of Florida, he was unjustly found guilty of throwing paint on his platoon leader's car. b) During the military police investigator's interview of the applicant, the single investigator stated at trial that he noticed specks of yellow paint on the applicant's arm and that he grabbed the applicant's arm and asked where they came from. See Ex. 13. The applicant also testified that he was never read his rights by the investigator and had no idea what he was signing prior to the interview. See Ex. 14. After being told that there were eyewitnesses and that there was no use in fighting it, the applicant felt coerced enough to simply admit to the act. See id. The applicant could not possibly have dumped paint on his platoon leader's car. As established at trial, the applicant's barracks' room was right near the CQ (Charge of Quarters) desk and those on duty at the time testified they did not see the applicant leave his room the night of the incident prior to being awakened by the military police investigator to conduct the interview explained in the preceding paragraph. See Exs. 9 & 15. c) In addition, the military judge completely disregarded two exculpatory facts. The applicant's roommate, Sergeant (SGT) M_, admitted to the applicant that he had thrown the paint on their platoon leader's car out of revenge for the platoon leader's handling of SGT M_'s domestic issues with his wife. See Ex. 16. While SGT M_ could not be located for trial due to leaving the Army, both defense and trial counsel stipulated as to what SGT M_ would have testified to and this was submitted as an exhibit during trial. See id. Most importantly, fingerprint samples were taken from the paint can used during the incident and did not match the applicant's fingerprints. See Ex. 17. This scientific verification of the applicant's innocence was never even addressed by the military judge at the applicant's bench trial. d) The applicant suffered further injustice from his chain of command. During trial, his First Sergeant (1SG) testified that he thought the applicant was worthless as a Soldier. See Ex. 18. In the weeks between the incidents, the 1SG took the applicant's car keys and civilian clothes, and he was moved to a barracks room with no heat and filled with mold. When the applicant wrote to his Congressman, his commander denied this poor treatment. The applicant was then made to report to his 1SG every morning where he was made to do janitorial work and painting in retaliation. His platoon leader, the same officer who had paint thrown on his car, testified that the applicant was an outstanding Soldier prior to the leave incident several weeks before. See Ex. 19. The applicant's first line supervisor who observed him every day, stated that the applicant was also an outstanding Soldier who was invaluable to their team. See Ex. 20. e) As can be seen, the applicant's special courts-martial, held before a single military judge, was full of witnesses whose testimony on every issue contradicted themselves. The substantial evidence, which includes the fingerprints on the paint can and testimony of SGT M_, all verify that the applicant never threw paint on his platoon leader's car. Instead, the applicant was targeted by his chain of command who believed they had been lied to by the applicant over his leave and started a personal vendetta against him. The applicant, who already believed his chain of command had unjustly given up on his integrity, was woken up in the middle of the night and coercively interviewed by a military police investigator. During trial, the judge then never considered exculpatory evidence. As a result, the applicant suffered a severe injustice when he was given a bad conduct discharge and discarded by the Army. f) Also, it is respectfully submitted that the applicant's outstanding post- service actions and contributions to his community warrant a records correction under the clemency standard. Despite the bad conduct discharge preventing him from being hired at many jobs, the applicant has provided for his family and is currently employed full-time as a sales manager at Tire Choice after working as a licensed insurance agent and as a surety agent. See Ex. 21. He earned his degree in criminal justice from the Gulf Coast Community College. See Ex. 22. He has also been a member of the Free and Accepted Masons for over 25 years. The applicant remains immensely proud of his military service, but his pride is also tempered by a great sense of shame from his bad conduct discharge. g) The applicant is the only member of his family who did not retire from the military and he feels that his discharge status has prevented him from providing for his family the way that he should. In many ways, he feels that he has served a life sentence for over 30 years for something he did not do. He now seeks to restore his good name and honor so he can leave this unfortunate chapter of his life in the past and continue to move forward and continue to provide for his family. The applicant has demonstrated his true character and integrity and will continue to prove himself as a valuable and respectable member of his community. c. CONCLUSION –– In light of the facts and clemency matters presented herein, the applicant respectfully requests that his bad conduct discharge be changed to honorable, and his narrative reason for separation and separation code be changed to reflect "Secretarial Authority." The applicant suffered a material injustice as his trial was riddled with law enforcement misconduct, bias on the part of his chain of command, and disregard of exculpatory evidence by the military judge. Furthermore, since his discharge the applicant has worked exceedingly hard to prove to himself, his family, and his community that his bad conduct characterization of service was an aberration and that he truly is a model citizen. 3. On 26 June 1985, the applicant enlisted in the Regular Army for a term of 3 years, at the age of 17 years old and in the rank of Private E-2. 4. After completing one station training, the applicant was assigned overseas to Korea in military occupational specialty (MOS) 13E (Fire Direction Specialist). 5. His personnel qualification record shows he was promoted to: * private first class on 1 February 1986 * specialist on 1 September 1986 6. On 2 December 1986, he was reassigned to Fort Sill, OK. On 27 July 1987, he accepted nonjudicial punishment (NJP) for willfully disobeying a superior noncommissioned officer (NCO). 7. On 23 September 1987, his immediate commander initiated a bar to reenlistment against the applicant for receiving a company grade Article 15, UCMJ, maintaining low standards, drawing graffiti on Government property, and substandard performance. The commander indicated the applicant received three DA Forms 4856-R (General Counseling Statement). His record is void of the counseling forms. 8. On 8 March 1988, the commander counseled the applicant to inform him of his intent to leave the applicant's bar in place. On 14 March 1988, the commander reviewed the applicant's bar to reenlistment and determined the bar would remain in effect. 9. On 4 April 1988, the applicant was convicted by special court-martial, contrary to his plea, of one charge and one specification of willfully and wrongfully damaging private property in the amount in excess of $100.00. He was sentenced to reduction to private/E-1, forfeiture of $400.00 pay for two months, confinement for two months, and a bad conduct discharge. On 5 August 1988, the sentence was approved and, with the exception of the bad conduct discharge, ordered executed. 10. On 20 May 1988, he was released from confinement. On 12 August 1988, he was placed on excess leave until 16 May 1989 (279 days), pending completion of his appellate review. 11. On 6 April 1989, after being finally affirmed, his bad conduct discharge was ordered executed. 12. On 16 May 1989, he was discharged from the service. He completed 3 years, 9 months, and 5 days of his 3 year contractual obligation, with 45 days lost due to confinement. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * M16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Second Class Marksmanship Qualification Badge * Army Achievement Medal * Overseas Service Ribbon * Character of Service: Bad Conduct * Separation Authority: Army Regulation (AR) 635-200, Section IV, Chapter 3 * Separation Code: JJD * Reenlistment Code: 3B, 3C, 3 * Narrative Reason for Separation: As a Result of Court-Martial, Other 13. The applicant provided: a. The Army Achievement Certificate, dated 6 September 1986, shows he received the award for meritorious achievement while performing duties as Fire Direction Specialist during the Battalion ARTEP (Army Training and Evaluation Program) from 1 August 19869 to 6 August 1986. Ex. 3. He was awarded two Certificates of Achievement for outstanding achievement during the Third and Fourth Quarters Fire Direction Center Evaluations. Exs. 4 & 5. b. Two DD Forms 458 (Charge Sheets) show he was charged with violations of Article 107, UCMJ –– False official statement and Article 109, UCMJ –– Property other than military property of the Unites States –– waste spoilage, or destruction. Exs. 6 & 7. c. Panama City Police Department Report, dated 8 September 1987, shows the applicant was the subject in a shooting in Panama City, Florida; incident description of aggravated battery, battery (simple), and disorderly conduct. Ex. 8 d. Excerpt from Court-Martial Record of Trial (ROT) shows: (1) The trial counsel provided an opening statement regarding the events which led up to the charges against the applicant. The defense counsel provided an opposing opening statement. Ex. 9, pgs. 20-22. (2) The military police investigator testified that he read the applicant his rights, which he waived. The investigator stated initially the applicant denied damaging his platoon leader?s car. The investigator went along with the denial, like he did not recognize the yellow paint on the applicant?s arm. He grabbed the applicant’s arm and said, ?Well, can you tell me about this right here?? The accused responded, ?Damn, I should have washed myself better.? Ex. 13. (3) The applicant testified, in pertinent part, that he (SGT M_) told him that he put the paint can on some paint shop somewhere downtown. The applicant did not do it but the investigator insisted that he did. The investigator grabbed his arm and he did not want to get in to trouble. The investigator told him that they had witnesses to say that they saw the applicant do it. He provided a sworn statement but he did not know what he was signing because the investigator did not read the statement to him or read him his rights. He went over the statement with the investigator afterwards but the document was already signed before he was questioned. Ex. 14, pg. 112. The applicant, under cross examination by the trial counsel, admitted his signature was on the Rights Warning Procedure Waiver Certificate. Ex. 14, pg. 113. (4) The 1SG testified to the applicant?s duty performance and rated the applicant?s performance compared to Soldiers of equal rank from a scale of one to ten as zero within the last nine months. He did not think the applicant had the potential for further service. Ex. 18, pg. 176. LT S_, the applicant’s platoon leader and victim in the case, testified the applicant did an outstanding job the first six or seven months of assignment to the unit. Once problems started with LT K_, his performance was subpar at best. On a scale from one to ten, he rated the applicant?s duty performance as one. Ex. 19. SGT W_, the applicant?s first line supervisor, testified that the applicant?s duty performance was outstanding and he had no problem with working with him again. Ex. 20 e. Stipulation of Expected Testimony, dated 21 March 1988, shows the prosecution and the defense stipulated and agreed that if SGT W_ was present in court and sworn as a witness, he would testify: He was the CQ on 1 November 1987, when Lieutenant (LT) S_ asked who had left the barracks and he was mainly concerned about the applicant. LT S_ said someone had poured paint on his car. Although SGT W_ saw the applicant go in and out of his barracks room, he did not remember seeing him leave the billets. f. Stipulation of Expected Testimony, dated 1 April 1988, shows the prosecution and the defense stipulated and agreed that if SGT M_, was present in court and sworn as a witness, he would testify: He had gone to Sears earlier to pick up the yellow can of paint. Sunday night he went over to LT S?s house and threw paint on his car. He then went back to the barracks room that he shared with the applicant. He told the applicant he had thrown the paint on LT S?s car and he had thrown the paint can in a dumpster downtown on 2nd Street at a paint shop. SGT M_ had a grudge against LT S_ because he had been chaptered out of the Army because they said he abused his wife. LT S_ was the one who advised his wife of the procedures to report it. Ex. 16 g. Criminal Investigation Division Laboratory Report, dated 1 March 1988, shows that the paint can, the applicant?s fingerprints, and the investigator?s fingerprints were examined as evidence. The paint can revealed one latent fingerprint and one latent partial palm print which were suitable for identification. Neither the applicant?s nor the investigator?s fingerprints matched those which were on the paint can. Ex. 17 h. Applicant?s Résumé (Ex. 21), shows his work experience as * Chase, Retention Specialist, Team Lead from 1999-2003 * Case America Pawn, Assistant Manager 2002-2006 * Home Depot Account Manager 2006-2008 * Verizon Wireless Senior Customer Service Representative, 2008-2013 * Ultimate Medical Academy Career Service Advisor, 2013-1014 * Progressive Insurance Account Manager, 2014-2016 * Firestone Complete Auto Care Manager of Tire Sales, 2016-Present i. Gulf Coast Community College Certificate of Training, dated 14 October 1988, shows he received training in correctional standards. 13. AR 635-200 (Personnel Separations – Enlisted Personnel) states 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. A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 15. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered counsel's statement and the applicant's record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and found his post-service achievements insufficiently mitigating in support of a favorable clemency determination. The Board further noted that the applicant's conviction and sentence were reviewed and affirmed as required in cases involving a punitive discharge. 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 concurred with the correction described in Administrative Note(s) below. 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, except for the correction described in Administrative Note(s) below, 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): The applicant served in South Korea for a period that meets the criteria for the Korea Defense Service Medal. Correct his DD Form 214 by adding the Korea Defense Service Medal. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states 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: a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. b. 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. c. Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge) stated an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. d. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. Title 10, section 1552 provides court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 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 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) AR20190014709 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014709 11 ABCMR Record of Proceedings (cont) AR20190014709 10