IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010817 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), 18 August 2022 * Self-authored statement, undated * 7-character reference letters 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 in September 1996, falsely accused him of forcible sodomy. This is not true; he has a copy of the full investigation, and it was consensual. An investigation was completed, and the findings were insufficient. He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) and during the court-martial proceedings refused to testify. His case took almost a year, he felt humiliated, so he requested a chapter. He was later informed that a former noncommissioned officer (NCO) used to set him up. Prior to this incident he was a model, Soldier. After his discharge it was difficult to find employment. In 1999 he started working at Bridgestone, and in 2006 he was promoted to supervisor. He devotes his personal time to the Wounded Warrior Operation and donates to the United Way and American Red Cross. 3. On 7 March 1985, the applicant enlisted in the Regular Army. 4. On or about 9 April 1987, the applicant was assigned to 102nd Quartermaster Company, in Fort Campbell, KY. 5. The applicant served in Saudi Arabia from 30 December 1990 to 6 May 1991. 6. The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 August 1995. 7. His DA Form 458 (Charge Sheet), dated 12 February 1997, shows in part – a. Charge I, violation of the UCMJ, Article 125 (Sodomy), Specification I: In that SSG Applicant did on or about 3 September 1996 commit sodomy with Private First Class (PFC) by force and without the consent of PFC . b. Charge II, violation of the UCMJ, Article 134 (Indecent Assault), Specification: In that SSG Applicant did on or about 3 September 1996, wrongfully commit an indecent assault upon PFC a person not his wife, by placing his hand in her pants, touching her vagina, placing his hand in her blouse, and fondling her breast with intent to gratify his sexual desires. c. Charge III, violation of the UCMJ, Article 92 (Dereliction of Duty), in that SSG Applicant was on or about 3 September 1996, derelict in the performance of his duties in that he willfully engaged in sexual activity with PFC , a Soldier on guard duty, while acting as the noncommissioned officer (NCO) in charge of the duty guard, as it was his duty not to do so. 8. The applicant provides two pages of excerpts from an unnamed and undated document containing findings and recommendations, which show in part there was insufficient evidence to believe that the applicant forcibly sodomized PFC on 3 September 1996. The evidence supports consensual sexual activity. 9. On 21 February 1997, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: a. He understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. b. He had been advised and understand the possible effects of an under other than honorable discharge. As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a veteran under both state and federal law. c. He understood that he must apply to The Army Discharge Review Board or the Army Board for Correction of Military Records if he wish a review of his discharge. He realize that the act of consideration by either board does not imply that his discharge will be upgraded. d. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 10. On 21 May 1997, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate. 11. On 6 June 1997, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service under the provisions of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 12. The applicant was discharged from active duty on 13 June 1997 under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with an under other than honorable conditions characterization of service, a separation code of FKS, and a reentry code of 3. His DD Form 214 shows he completed 12 years, 3 months, and 7 days of active service. Additionally, he was awarded or authorized the following awards: * Army Achievement Medal (6th Award) * Army Commendation Medal (3rd Award) * National Defense Service Medal * Southwest Asia Service Medal with three bronze service stars * Noncommissioned Officers Professional Development Ribbon with numeral two * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Saudi Kuwait Liberation Medal * Kuwait Liberation Medal-Government of Kuwait * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade * Air Assault Badge 12. The applicant provides the following character statements, which show in part: a. A letter issued by , Sergeant First Class (retired), Clarksville Montgomery County Commissioner, which states she met the applicant while on active duty, he is a hard worker and makes the community better. b. A letter issued by , Bridgestone Metalpha, Business Services Planner, states applicant is an asset to the company, and has been on several problem-solving teams. c. A letter issued by , states he has worked with applicant for 12 years. Applicant treats everyone with dignity and is the true definition of a Godly spirit filled man. d. A letter issued by , Human Resource Manager with Bridgestone Metalpha, stated applicant exhibits a wealth of maturity in dealing with both personal and professional situations. e. A letter issued by , Sergeant (retired), states he has known applicant since 1994. They were fellow NCO’s. Applicant had a bright future. Many of the NCO’s looked up to him because of his ability to lead and make them become successful. f. A letter issued by , Command Sergeant Major (retired), stated he has known applicant since 1991. They were stationed in Germany together. Applicant always set good examples, there for his family, and volunteered in the community. g. A letter issued by , Sergeant First Class (retired), stated he has known applicant for 34 years. They served together as NCO’s and applicant maintained the value and honor of a U.S. Soldier. He led during peace and war time. He ensured his troops safety. He is a devoted father and reliable to those in need. 13. By regulation (AR 635-200), a member who has committed an offense 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. 14. 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. 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 determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, 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 found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 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. Therefore, the Board denied relief. 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, 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) 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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. 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) AR20220010817 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1