IN THE CASE OF: BOARD DATE: 17 May 2023 DOCKET NUMBER: AR20220010460 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 11 July 2022 * Self-authored letter, 11 July 2022 * Department of Driver Services DUI Alcohol or Drug Use Risk Reduction Certificate of Completion, 23 November 2001 * ACE DUI and Community Intervention/ DUI/Defensive Driving, 15-18 January 2005 * Cornerstone Alcohol Drug Substance Abuse Program Enrollment/Termination Consent, 7 April 2017 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 during active duty, and after his discharge his immaturity and peer pressure caused him to experiment with illegal drugs, and alcohol. Also, the stresses of active duty contributed to his bad choices. His life choices improved with age and maturity. His discharge prevents his potential in life. 3. On 17 July 1979, at 18 years of age, the applicant enlisted in the Regular Army. The highest rank/grade he attained was staff sergeant (SSG)/E-6. 4. On 8 February 1988, the applicant was counseled for missing movement for field training on 8 February 1988. 5. A Memorandum for Record (MFR), subject: Indecent Acts or Liberties with a Child, issued by Captain (CPT) , which shows in part, on 12 June 1989, CPT , called Criminal Investigation Department and talked to Special Agent reference the attached (statements). Agent hoped to interview Ms. and daughter today for more information. 6. The MFR, 12 June 1989, shows the following attached statements – a. On 9 June 1989, Ms. , stated she had known the applicant for two years; he became a trusted family friend. On 4 June 1989, the applicant came by her house to bring her son home. He stayed for 45 minutes. She left him at the house; she felt at ease because he has stayed with her children on other occasions. On 5 June, her daughter told her the applicant took her to a deserted road behind the house and put his hands on her breasts and between her legs. The applicant lied to her daughter, and told her he was going to take her to the mall. After refused to let the applicant have his way, the applicant told her if she did not tell anyone about the incident he would come back and take her to the mall and spend a few dollars on her. b. On 9 June 1989, , stated she is eight years old and had known the applicant for two years. She stated the applicant came by the house when her mom was not home and stated he wanted to take her mom to the mall. stated, “I will go with you.” She put her shoes on, told her brother she was leaving with applicant and then they got in the car and drove off. They talked about the applicant’s car and then applicant asked her can I look under there. said, “no”. He asked her why and she said, “because I am a little girl”. Applicant said, “I am a little boy”. said, “no you are not you are a man”. The applicant said, “if I touched you your mom would not mind,” he further stated, “he would take her to the mall and spend a couple of dollars on her.” said, “no”. So, applicant said he is going to do this, but he will take her home. said “yes”. He took her to a road no one was riding on, stopped the car and asked her again, said “no”. Applicant said, “let's go home,” and said “yes.” 7. On 27 June 1989, the applicant was counseled for – a. Indecent assault upon a child, on 20 June 1989. He was ordered to stay away from Ms. and her family until the investigation was completed. b. He was ordered to repair/replace hasp on trailer by close of business on 19 June 1989, but her did not do so and was therefore negligent in following orders. The applicant submitted a statement that shows, they were short personnel at the dining facility, and he had to work the weekend. 8. A CID report, 30 July 1989, shows in part, on 14 July 1989, the applicant, a SSG and , a specialist (SPC/E-4) were involved in wrongful possession and use of cocaine. The investigation revealed that the applicant and SPC were stopped in a known retail drug sales area by the County Sheriff’s Department, , . Upon their removal from the vehicle two pieces of cocaine were located under the applicant's seat. 9. A memorandum, subject: Reporting of Urinalysis Testing, 3 August 1989, issued by the Acting Alcohol and Drug Control Officer, shows, on 15 July 1989, the applicant tested positive for cocaine. 10. On 15 August 1989, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine between 15-16 June 1989. This is in violation of Article 112a, UCMJ. His punishment consisted of reduction to the grade of sergeant/E-5, forfeiture of $500.00 pay a month for two months, and 45 days restriction. 11. On 17 August 1989, the Community Counseling Center issued a memorandum that shows, the applicant was absent from an intake appointment, on 9 August 1989. 12. On 22 August 1989, the applicant completed a medical examination which shows, he was not taking any medication and he was in good health. 13. On 13 September 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraph 14-12(b)(c), for commission of a serious offense – misconduct. The reason for his proposed actions are due to indecent acts with a child, FTR-missing movement, and positive urinalysis (cocaine). He recommended a under other than honorable conditions and advised the applicant of his rights. 14. On 21 September 1989, the applicant acknowledged receipt of his commander's intent to separate him for misconduct. He consulted with counsel who advised him of the basis for the contemplated action to separate him under AR 635-200, Chapter 14, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He declined making a statement on his own behalf. He acknowledged: a. He understood the effect of any waiver of rights; of the least favorable discharge he may receive as a result of the action; and the effect of each type of discharge/characterization of service. b. He understood that if the separation authority refuses to accept this conditional waiver of a hearing before an administrative separation board that his case will be referred to an administrative separation board. In that case - (1) He requested personal appearance before an administrative separation board. (2) He requested consulting counsel and representation by CPT as his military counsel. (3) He indicated he understood that his willful failure to appear before the administrative separation board by absenting himself without leave will constitute waiver of his rights to personal appearance before the board. c. He understood that, as the result of issuance of a discharge certificate/ character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that consideration by either board does not automatically imply upgrading. d. He understood he may expect to encounter substantial prejudice in civilian life if a discharge/character of service any less favorable than honorable is issued to him. e. He understood that he may up until the date of the separation authority orders directs or approves his separation withdraw his waiver and request than an administrative separation board hear his case. 15. On 3 October 1989, the applicant's immediate commander-initiated separation action against the applicant under chapter 14-12(b)(c) of AR 635-200 for a pattern of misconduct and commission of a serious offense. He recommended a general discharge. The intermediate commander recommended approval. 16. On 1 December 1989, the applicant’s Deputy Commanding General disapproved the request for conditional waiver, General Discharge, and stated the case would be processed by a Board of Officers. 17. On 20 December 1989, the applicant received a memorandum, subject: Notification to Appear Before a Board of Officers. The memorandum shows in part, the board would convene on 5 January 1990, to determine whether he should be eliminated from the military due to a pattern of misconnect and commission of a serious offense, use of illegal drugs (cocaine). On the same day the applicant acknowledged receipt. 18. On 4 January 1990, the applicant acknowledged receipt of his commander's intent to separate him for misconduct. This statement includes the options and the rights available to him in contemplated administration separation cases. He consulted with counsel who advised him of the basis for the contemplated action to separate him under AR 635-200, Chapter 14, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He acknowledged: a. He waives consideration of his case by an administrative separation board. b. He had been advised of his right to submit a conditional waiver of his tight to have his case considered by an administrative separation board. c. Statement in his own behalf are not submitted herewith. d. He requested consulting counsel. e. He understood that his willful failure to appear before the administrative separation board by absenting himself without leave will constitute a waiver of his rights to personal appearance before the board. f. He understood that, as the result of issuance of a discharge certificate/ character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that consideration by either board does not automatically imply upgrading. g. He understood he may expect to encounter substantial prejudice in civilian life if a discharge/character of service any less favorable than honorable is issued to him. h. He understood that he may, up until the date of the separation authority orders, directs, or approves his separation, withdraw his waiver and request than an administrative separation board hear his case. 19. On 18 January 1990, the separation authority approved his discharge under the provision of AR 635-200, Chapter 14, paragraph 12(b)(c), directed the issuance of an other than honorable conditions discharge, and reduction to the lowest enlisted grade. 20. On 24 January 1990, Headquarters, U.S. Army Signal Center and Fort Gordon, published Orders Number 024-512 ordering his discharge effective 26 January 1990. 21. On 26 January 1990, at 29 years of age, the applicant was discharged in the rank/grade of PVT/E-1 in accordance with chapter 14-12c of AR 635-200 for misconduct – abuse of illegal drugs, under other than honorable conditions, with a separation code of "JKK" and a reentry code of "3 & 3C." His DD Form 214 shows: a. He completed 10 years, 6 months, and 10 days of active service. b. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal (3rd Award), and Noncommissioned Officers Professional Development Ribbon. c. Item 18 (Remarks) listed his reenlistment periods as "790717-820419; 820420- 970120," but did not list his continuous honorable service. 22. The applicant provides the following – a. A Department of Driver Services DUI Alcohol or Drug Use Risk Reduction Certificate of Completion, completed on 23 November 2001. b. An ACE DUI and Community Intervention/ DUI/Defensive Driving, with course dates of 15-18 January 2005. c. A Cornerstone Alcohol Drug Substance Abuse Program Enrollment/Termination Consent, for successful completion on 7 April 2017. 23. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 24. Regulatory guidance provides a Soldier can be separated 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. 25. 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: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 noted, the applicant provided insufficient evidence of post-service achievement or letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. However, the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 26 January 1990 by adding the following statement in item 18 (Remarks) “CONTINUOUS HONORABLE SERVICE from 790717-870120.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his characterization of service from under other than honorable conditions to honorable. 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): N/A REFERENCES: 1. Title 10, U.S. 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), Chapter 14 (Misconduct) sets forth the basic authority for the separation of enlisted personnel 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), commission of a serious offense, and convictions by civil authorities. 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. a. 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. 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. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to 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 Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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) AR20220010460 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1