IN THE CASE OF: BOARD DATE: 27 October 2022 DOCKET NUMBER: AR20190008042 APPLICANT REQUESTS: change his under other than honorable conditions discharge to honorable and restoration of his rank/grade of sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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, section 1552(b); 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 he believes that enough time has passed with his status as "Other Than Honorable" missing out on all the benefits that come with "Honorable". He is experiencing many medical issues and need the help of the Veterans Administration. He would like to ask that the Board restore his rank to E-5 and change his status to Honorable so that he can get the medical attention needed. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 14 August 1978. He held military occupational specialties 63T (Bradley Fighting Vehicle Systems Mechanic) and 63N (M- 60 Tank System Mechanic). b. He was advanced to SGT/E-5 on 21 May 1981. He then reenlisted on 17 February 1982 and served in Germany from August 1982 to August 1984. c. On 9 July 1985, the U.S. Army Criminal Investigative Command (CID) Kitzingen Agency in Germany, together with the Fort Meade office, investigated the applicant after he was reported to have engaged in sexual intercourse with Ms. JDS between April 1983 and August 1984, knowing at the time she was 14/15 years of age, and that he was married. The investigation disclosed that the applicant was engaged in sexual intercourse and sodomy with a female under the age of 16, not his wife. He was title for: Carnal Knowledge, Sodomy, and Adultery. d. His DD Form 458 (Charge Sheet) is not available for review. However, on or about 28 January 1986, court-martial charges were preferred against him for violating the Unform Code of Military Justice (UCMJ). [The Charges are Article 120 (Carnal Knowledge), 125 (Sodomy), and 134 (general article includes adultery) of the UCMJ]. e. On 28 January 1986, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he understood that, if his request for discharge is accepted, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service" * he elected to submit a statement in his own behalf f. In his statement, the applicant asked for a general discharge for the following reasons: (1) He has presently signed a Declaration of Paternity and Support Agreement for the behalf of the child, . In addition to , he has three other children ages. His girl has serious health problems which require her to be considered an Exceptional Family Member because of her extensive medical treatment requirements. It is his strongest desire to meet his financial obligations to his daughter and to continue to provide adequate support for my other three children. (2) He realizes that normally and Other Than Honorable Discharge is called for under Chapter 10, however, a general discharge warranted in this case because it is in the best interest of his children and is warranted by his service record. Granting him a General Discharge Under Honorable Conditions will enable him to secure the best paying job possible and thereby enable him to pay greater child support in the future, as my financial condition improves. g. His chain of command at the immediate, intermediate, senior, and most senior commanders recommended the request for separation be approved and the applicant receives an Other Than Honorable Discharge Certificate. The seriousness and gravity of the charges against the applicant do not warrant the awarding of a General Discharge Certificate as he requested. h. On 14 February 1986, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade of private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 24 February 1986. i. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court- martial) of AR 635-200, in the rank/grade of PVT/E-1, with an under other than honorable conditions characterization of service. He completed 7 years, 6 months, and 11 days of active service and he was assigned Separation Code JFS. (1) He was awarded or authorized: Good Conduct Medal (2nd Award), Army Commendation Medal, Army Service Ribbon, Overseas Service Ribbon, NCO Professional Development Ribbon, Expert Marksmanship Qualification Badge with Rifle and Grenade Bars, and Driver/Mechanic Badge. (2) The Remarks Block listed his immediate reenlistment this period: 780814 to 820216; 820217 to 860224 but did not list his continuous honorable service. j. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 4. By regulation (AR 635-200), Chapter 10: A member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. 5. 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 determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the serious criminal nature of the misconduct leading to the applicant’s separation and the lack of any mitigation or character evidence since the separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and/or a change to the applicant’s rank reflected on his DD Form 214. 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, United States Code, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. c. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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. 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) AR20190008042 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1