IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220003619 APPLICANT REQUESTS: Reconsideration of his request for reinstatement and return to active duty. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120016195 on 14 September 2012. 2. The applicant states that he was not afforded due process, coercion and collusion were involved. His assigned attorney encouraged him to take a polygraph. The attorney read and approved of him submitting a letter to the Board that appeared to be a confession. The attorney admitted by letter, that he took no action to defend the applicant because he was under the impression that the applicant would be able to face his accuser in court. The attorney assured him that he would be afforded a court martial. 3. The applicant enlisted in the Regular Army on 21 January 1971, for 4 years. He was honorably discharged on 25 February 1973 for immediate reenlistment. 4. The applicant reenlisted in the Regular Army on 26 February 1973, for 5 years. After a seven-month extension, he was honorably discharged on 31 August 1978. He was issued a DD Form 214 (Report of Separation from Active Duty) for this period of service. He was credited with 5 years, 6 months, and 6 days of net active service this period. 5. The applicant was appointed as a Reserve Commissioned Officer of the Army in the Adjutant General Corps, in the rank/grade of second lieutenant/O-1 on 12 October 1979, he entered active duty on 3 November 1979. 6. Previous ABCMR record of proceedings indicates that on 27 March 1980, an investigation was initiated by the Criminal Investigation Division to investigate allegations that the applicant had made homosexual advances toward an enlisted man. 7. On 22 April 1980, the applicant underwent a psychiatric consultation. He was psychiatrically cleared to distinguish right from wrong and adhere to the right at the time of the conduct under investigation and had the mental capacity to understand board proceedings and participate in his own affairs. 8. On 28 April 1980, the applicant’s commander notified the applicant that he was recommending his elimination from the Army under the provisions of Army Regulation 635-100 (Personnel Separations – Officer Personnel), Paragraph 5-12a(7) and (10), by reason of moral and professional dereliction. Specifically, that he committed a homosexual act with a private (PVT) on 22 March 1980; sending an inappropriate personal birthday card to a PVT, and associating with PVT in his bachelor officer quarters, during the period 21 March through 25 March 1980. 9. The applicant acknowledged receipt of the proposed action on the same date and elected to consult with counsel. On 2 May 1980, he submitted a rebuttal letter to the proposed action and denied any intention of homosexual involvement with the PVT. He further denied that he failed to conduct himself in a proper manner as a commissioned officer. He sought a second chance to prove his worthiness. 10. On 28 August 1980, a board of officers held a hearing to determine if the applicant should be eliminated from the service. The Board recommended that he be eliminated from the service for commission of or attempted commission of a homosexual act and conduct unbecoming of an officer, with issuance of an Honorable Discharge Certificate. 11. On 2 October 1980, the applicant’s commander notified him that the board of officers determined that he should be eliminated from the Army with an honorable discharge. The applicant acknowledged receipt of the proposed action and submitted a second rebuttal letter; wherein, he asked for the benefit of the doubt and the opportunity to prove himself and further serve his country. He was granted another elimination board. 12. On 1 April 1981, a second Board of officers held a hearing to determine if the applicant should be eliminated from the service. The Board voted to adhere to the prior board’s recommendation that the applicant be eliminated from the Army with an honorable discharge. 13. Consistent with the board’s findings and recommendations, the Deputy Assistant Secretary (Department of the Army Review Boards and personnel Security) approved the applicant’s elimination with an honorable discharge, on 8 April 1981. 14. The applicant was discharged on 15 April 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), Chapter 10, as a result of misconduct-moral or professional derelict. His service was characterized as honorable. He was credited with 1 year, 5 months, and 13 days of net active service this period. His DD Form 214 further shows he was credited with 8 years, 1 month, and 12 days of total prior active service. 15. The applicant petitioned the ABCMR on nine previous occasions for consideration of his request for reinstatement and correction of his military records. Initially, the Board voted to deny relief and determined the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. The applicant last petitioned the ABCMR on 20 August 2012, for reconsideration of his request for reinstatement and correction of his military records. His request was denied, and he was advised that he had the option to seek relief in a court of appropriate jurisdiction. 16. 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. 17. 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. 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. Upon review of the applicant’s petition and available military records, the Board determined based on regulatory guidance the applicant has passed the age requirement to be reinstated and brought back onto active duty. The Board found insufficient evidence to show the applicant was improperly separated. Evidence shows the applicant was discharged, as a result of misconduct-moral or professional derelict, receiving a characterization of service as honorable. The burden of proof rest with the applicant to demonstrate that an injustice has occurred. Based on this, the Board denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20120016195 on 14 September 2012. 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. Army Regulation 635-120 as then in effect, prescribed procedures whereby an officer on active duty may tender his resignation or be discharged and whereby officers on active duty or retired officers may be dropped from the rolls of the Army. Chapter 10, provided that a Regular Army commissioned officer who has been recommended for elimination by a Department of the Army selection board for elimination or may request discharge in lieu of elimination action. Commanders will ensure that there is no element of coercion in connection with a request for discharge in lieu of elimination. The officer concerned will be afforded the opportunity to consult with legal counsel and will be allowed a reasonable time to make a personal decision when discharge is contemplated. The legal counsel should fully advise the officer of the implications of his/her voluntary actions. Upon final approval by the Secretary of the Army of elimination proceedings against any officer of the active Army, that officer, regardless of component, will be discharged as the result of such proceedings. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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) AR20220003619 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1