IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220005489 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 was an average Soldier that loved what he was a part of. He got himself into trouble in the civilian community and his military counsel led him to believe that accepting a District Attorney General's deferral would not have an adverse impact on his military career. He was forced to take the discharge, or he would have lost his security clearance and military occupational specialty (MOS). He became angry and walked away. At the age of 65, and 37 years later all he has is his honor. 3. On 23 July 1975, the applicant enlisted in the Regular Army for a period of 4 years. He continued to serve through a series of reenlistments in positions of increasing responsibility. He was promoted to the rank/grade of staff sergeant/E-6 on 28 April 1982. On 24 February 1984, while stationed at Fort Lewis, Washington, he reenlisted for a period of 6 years. 4. The complete facts and circumstances surrounding the applicant's trial in a civilian court are not available for review. However, his record does contain documents from the Circuit Court of the Fifth Circuit, State of Hawaii (which are available in their entirety for the Board's consideration) that show: a. On 22 February 1985, the applicant pled "no contest" to two counts of sexual abuse in the first degree. He acknowledged that he pled no contest after discussing all the evidence and receiving advice from his lawyer that it was better to put himself at the mercy of the court. (1) In his own words, he pled in this matter because "I chose to respond to the complainant's body language rather than be guided by what she said. While she told me, don't. Stop. I chose to read this as don't stop. I believe that in doing so I caused her to have sexual contact with me by forcible compulsion." (2) He acknowledged he had not been promised any kind of deal or favor of leniency by anyone for his plea, except that he had been told the government had agreed as follows: To dismiss the rape counts contained in Counts I, II and III as well as the sodomy count contained in Count IV. (3) He further stated the government had agreed not to oppose his Motion for Deferred Acceptance of No Contest Plea. b. On 22 February 1985, the applicant filed a motion to defer acceptance of his plea of no contest to the charge of Sex Abuse in the First Degree (Count I) and Sex Abuse in the First Degree (Count II) upon such conditions as the Court deemed just. He acknowledged his understanding that if the Court denied this Motion, the Court would then find and adjudge him guilty upon his plea of no contest and impose sentence. c. On 18 April 1985, the applicant's motion for deferred acceptance of his no contest plea was granted for a period of 24 months with the following special conditions: (1) A six-month jail sentence was imposed with said sentence suspended during the deferral period. (2) A fine of $5,000 was imposed with $2,500 of said fine suspended during the deferral period. The balance would be payable in monthly installments of not less than $100.00 commencing May 1985. (3) The applicant would submit to being photographed by the Adult Probation Division for identification purposes. (4) The applicant would render 200 hours of community service in the jurisdiction where he resided. 5. On 25 April 1985, an attorney rendered a letter to inform the applicant's commander regarding the legal outcome of the applicant's case and to explain the legal and practical significance of the Court's ruling. This letter is available in its entirety for the Board's consideration. The lawyer explained the applicant had not been convicted of any crime. Nor, for legal purposes, had he plead guilty to any crime. While the Adult Probation Division of the Court was supervising the applicant's performance of the terms and conditions of his deferred acceptance plea, he was not "on probation." These facts were not technicalities, they were legal realities under the laws of the State of Hawaii. From a legal point of view, the lawyer could see no reason why the applicant should not be immediately returned to his prior military status; although he recognized that the issue was one for the Army to resolve. 6. A Military Police Report, dated 20 June 1985, shows the applicant received the following Civil Charges: Rape I, 3 Counts and Sodomy I, 1 Count. The details of the offenses and a synopsis of the subsequent court actions are available in their entirety for the Board's consideration. 7. The applicant underwent a mental health evaluation and pre-separation medical examination on 26 July 1985. The examining physician determined the applicant: * had the mental capacity to understand and participate in the proceedings * was mentally responsible * had the diagnosis, Mixed Personality Disorder * was able to distinguish right from wrong and to adhere to the right * was psychologically cleared for an administrative action deemed appropriate by command 8. On 2 October 1985, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraphs 14-5 and 14-12c, by reason of misconduct – commission of a serious offense. The specific reason cited was action taken against the applicant by civil authorities for two counts of sexual abuse in the first degree, which resulted in a finding tantamount to guilty, on 18 April 1985; and rape and sodomy of a woman on 10 June 1984. The applicant was advised that such a separation could result in his discharge from the Army with a characterization of his service as honorable, general, or under other than honorable conditions. The applicant acknowledged receipt of the notification the same day. 9. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected to submit statements in his own behalf, but waived representation by military counsel, consideration of his case by an administrative separation board, and personal appearance before a board. He elected to submit statements in his own behalf; however, the available record is void of a statement. 10. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, paragraphs 14-5 and 14-12, which applied to conviction by civil court and acts of misconduct, and commission of a serious offense. 11. On 4 October 1985, the separation authority approved the recommended discharge and directed the applicant's service be characterized as General (under honorable conditions). 12. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged on 16 October 1985, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense. His DD Form 214 shows, in part: (1) block 12 (Record of Service) - He completed 10 years, 2 months, and 24 days of net active service this period. (2) block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized) - He was awarded or authorized the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal (3rd Award), Noncommissioned Officer Professional Development Ribbon with Numeral 1, National Defense Service Medal, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with M-16 Rifle Bar, and Air Assault Badge. (3) block 18 (Remarks) – Immediate reenlistments this period: from 9 February 1979 until 11 November 1981; from 12 November 1981 until 23 February 1984; from 24 February 1984 until 16 October 1985. (4) block 24 (Character of Service) - His characterization of service was Under Honorable Conditions (General). 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 14. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 15. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, states for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter "CONTINUOUS HONORABLE SERVICE FROM" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board determined there was insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided no post-service letters of support that could attest to his honorable character that might have mitigated the discharge characterization. The Board agreed the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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) 1. The evidence of record confirms the applicant enlisted on 23 July 1975 and had immediate reenlistments for the periods of 9 February 1979 until 11 November 1981, 12 November 1981 until 23 February 1984, and 24 February 1984 until 16 October 1985. 2. Based on the foregoing, amend the applicant’s DD Form 214, ending 16 October 1985 by adding the following comment to item 18 (Remarks): "CONTINUOUS HONORABLE SERVICE FROM 19750723 TO 23 FEBRUARY 1984." 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 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. Title 10, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. b. Paragraph 3-7b states 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 5. Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKQ" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220005489 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1