IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220005644 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214, Certificate of Release or Discharge from Active Duty * NCO Evaluation Reports and Awards orders, certificates, and forms * Photographs * DA Form 2-1, Personnel Qualification Record * Resume, Diplomas, Credit Reports, and Employment Performance Reviews * Certificates of achievement, training, accomplishments, and completions * Multiple character reference letter and/or endorsements 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 he holds dear serving in the Army as a non-commissioned officer (NCO) a privilege and honor. As his performance file depicts, he served over 17 years with distinction. Actions that led to this discharge centered around him being the unit's Training NCO. He shared with his leadership the falsification of records by Soldiers to either attend a school or be promoted. This led to an investigation that proved his assumptions to be true. Those soldiers were disciplined. His discharge was inequitable to because it was mostly based on circumstantial evidence. The court- martial trial did not accurately reflect his integrity or demonstrated character throughout his 17+ years in the military. He is remorseful serving his country as a committed Soldier had to come to a discrediting and demoralizing end. However, he is not lessening the allegations made against him. The allegations were targeted, unfounded, and unwarranted. He told the truth and felt his leadership and the system let him and these Soldiers do, as expressed by a court-member of his court-martial, First Sergeant (1SG) a. Since his discharge, he has and continues to uphold the Army's values as represented in a job in a very respectable field of pharmaceuticals with a reputable company (see his appraisals and accolades). Coupled with immersing himself in the community advocating for veterans to receive the quality care and services they have earned. From his family and their encouragement, he asks for the same consideration for his family and him to allow their care and benefits gained from a quality military career of over 1 7 years. b. His last duty station was Fort Carson, CO. While assigned to the Dental Clinic during February 1997, he was informed by 1SG James (Retired) that allegation of sexual harassment had been made against him by two civilian employees at Dental Clinic. He was then relieved of his duty responsibilities at the clinic and reassigned while the government reviewed those allegations. The Dental Clinic Commander, Colonel (COL) appointed COL to serve as the investigating officer. During that investigation at Fort Carson, the prosecution determined that the charges were not valid and therefore dropped. COL then sought six female soldiers who had served with him at the 464th Dental Clinic in Landstuhl, Germany, between 1992 and 1994. c. Under oath, all six female Soldiers stated the investigating officer coerced them to provide information about the alleged sexual harassment. These soldiers claimed to have been harassed at unspecified times between March 1992 and November 1994. Interestingly, the alleged victims could not recall exact dates for any of the alleged incidents, thus allowing the charges to fit into the statute of limitations. However, none of these soldiers ever filed a complaint. Since these alleged acts occurred over five years ago, a reasonable person would presume that at least one of these soldiers would have reported it at the time of the occurrence. It is noteworthy that PCSed prior to these soldiers and the command structure. This would lead one to believe that if any of these soldiers were reluctant to report such a complaint to the previous command, they should have felt comfortable with the new command. In appearance, this investigation was not designed to seek the truth of these allegations because neither of his Commanders, 1SG Equal Opportunity (EO) NCO, received any complaints against him. d. There were at least two instances of witness tampering by the prosecution: (1) CPT called his former 1SG and tried to intimidate and persuade her not to testify on his behalf. Contact was made without prior knowledge of the defense. 1SG complained to his defense investigator about CPT contacting her. (2) During the first two days of trial, the second incident of witness tampering occurred as the JAG (Judge Advocate General) Liaison, on several occasions by directing defense witnesses to leave the witness waiting area. It appeared to be an attempt not to have those defense witnesses available to the defense to testify. On December 16, 1997, after the lunch hour, urged the defense witnesses to check out of the hotel after court that day (the hotel the government was providing housing for the witnesses). The importance of this is the defense had not yet begun to present its case. (3) He believes the trial judge erred by allowing COL the investigating officer, to sit in court and hear the testimony of material witnesses, including witnesses that he, himself, had not interviewed. This allowed him to testify to information he had not directly discovered or obtained himself by interviewing these witnesses. It was evident that COL had no contact with these witnesses as he had to refer to his notes to recall their names during his testimony. He was allowed to testify and attempted to corroborate the testimony of these other witnesses. (4) The government failed to provide reciprocal discovery and share key prosecution witnesses such as COL Sergeant First Class (SFC) Specialist (SPC). This action denied defense and defense investigators the opportunity to talk to key prosecution witnesses. Thus, rendering the perception of "trial by ambush." c. Adding to the information mentioned above, his defense counsel was ineffective on several accounts: (1) Certain defense witnesses were excluded and were not called--for example, who would have impeached the testimony of then, SPC. While most of the alleged victims claimed they were not friends; therefore, they did not conspire on the charges, who would have testified they had a meeting at Sergeant (SGT) house and were venting their frustrations about the command and him. This appears to set the stage for all to seek retribution against him at any measure and would have exposed them not as being acquaintances but friends. (2) SPC who would have impeached the testimony of Staff Sergeant (SSG) regarding the alleged sexual assault she stated happened in a military vehicle. (3) Lastly, the defense counsel refused to object to the tactics of witnesses tampering by the prosecutor so profoundly that on several occasions during the trial, the trial judge admonished the defense counsel on his lack of preparedness related to the rules of evidence (Official Court records will support his information, he was not able to obtain those documents). For these reasons, he submits and requests favorable consideration for an upgrade of his discharge. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 4 March 1980 and held military occupational specialty 91E, Dental Specialist. b. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Germany from January 1982 to December 1984, April 1987 to April 1989, and February 1992 to December 1994. He attained the rank of sergeant first class (SFC)/E-7. 4. On 17 December 1997, he was arraigned at Fort Carson, CO, on the following offenses at a Special Court-Martial convened by the Commander, United States Army Fort Carson: a. Charge I: Article 93. Plea: Not Guilty. Finding: Guilty. (1) Specification 1: Maltreatment of subordinate, to wit: sexually harassing with offensive comments, telling her to sit on his lap in a military vehicle and instructing her to describe offensive comments made to her by prison guards, on divers occasions, between about 15 August 1992 and 30 April 1994. Plea: Not Guilty. Finding: Guilty, except the words "and by telling her to sit on his lap in a military vehicle." Of the excepted words, Not Guilty. (2) Specification 2: Maltreatment of subordinate, to wit: sexually harassing by unfastening his pants, exposing his penis, and asking her to get under his desk and perform sodomy on him, between about 15 August 1992 and 6 June 1994. Plea: Not Guilty. Finding: Guilty. (3) Specification 3: Maltreatment of subordinate, to wit: sexually harassing with offensive comments, on divers occasions between about 1 August 1993 and 29 November 1994. Plea: Not Guilty. Finding: Not Guilty. (4) Specification 4: Maltreatment of subordinate, to wit: sexually harassing with offensive oral and written comments and gestures, on divers occasions between about 1 September 1993 and 30 June 1994. Plea: Not Guilty. Finding: Guilty. (5) Specification 5: Maltreatment of subordinate, to wit: sexually harassing by offering to release her from unit training classes and physical fitness tests in exchange for sexual favors, on divers occasions between about 1 September 1993 and 30 June 1994. Plea: Not Guilty. Finding: Not Guilty. (6) Specification 6: Maltreatment of subordinate, to wit: sexually harassing with offensive comments, between about 1 January 1994 and 30 April 1994. Plea: Not Guilty. Finding: Not Guilty. b. Charge II. Article 134. Plea: Not Guilty. Finding: Guilty. (1) Specification 1: Indecent assault, to wit: grabbing the buttocks and breasts of a person not his wife, with intent to gratify his lust and sexual desires, on divers occasions between about 15 August 1992 and 6 June 1994. Plea: Not Guilty. Finding: Guilty. (2) Specification 2: Indecent assault, to wit: pressing his groin into the bathing suit bottom a person not his wife, with intent to gratify his lust and sexual desires, between about 15 August 1992 and 29 November 1994. Plea: Not Guilty. Finding: Not Guilty. (3) Specification 3: Indecent language, to wit orally communicating indecent language to on divers 15 August 1992 and 29 November 1994. Plea: Not Guilty. Finding: Not Guilty. (4) Specification 4: Indecent assault, to wit: pulling a person not his wife, to his body, with intent to gratify his lust and sexual desires, between about 1 September 1993 and 31 December 1993. Plea: Not Guilty. Finding: Guilty. (5) Specification 5: Indecent assault, to wit: pulling a person not his wife, to his body, with intent to gratify his lust and sexual desires, between about 1 January 1994 and 29 November 1994. Plea: Not Guilty. Finding: Not Guilty. 5. The court sentenced him to be discharged from the Army with a bad conduct discharge and to be reduced to the lowest enlisted grade of private/E-1. 6. On 29 April 1998, the convening authority approved the sentence and except for the part of the sentence extending to a bad conduct discharge, ordered it executed. The record of trial was forwarded to the appellate authority for appellate review. 7. On 6 December 1999, the U.S. Court of Criminal Appeals affirmed the findings of guilty and only the sentence 8. Special Court-Martial Order Number 55, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, PK on 27 September 2001, shows the findings of guilty and the sentence had been affirmed, the bad conduct discharge was ordered to be executed. Article 71(c) having been complied with; the bad-conduct discharge will be executed. 9. On 30 October 2001, Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK published orders discharging the applicant from active duty, in the rank/grade of private/E-1 effective 14 November 2001. 10. The applicant was discharged on 14 November 2001. His DD Form 214 shows he was discharged in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) with a bad conduct discharge, Separation Code JJD and Reentry Code 4. He completed 21 years, 8 months, and 11 days of active service, with excess leave of 1,379 days from 5 February 1998 to 14 November 2001. a. His DD Form 214 listed his reenlistments dates and continuous honorable service. It also indicated he completed his first term of enlistment. b. He was awarded or authorized: Meritorious Service Medal, 2nd Award; Army Commendation Medal, 4th Award; Army Achievement Medal, 5th Award; NCO Professional Development Ribbon with Numeral 3; Army Service Ribbon; Overseas Service Ribbon, 3rd Award; Expert Marksmanship Badge with Rifle Bar; Marksman Marksmanship Badge with Grenade Bar; Expert Field Medical Badge; and Silver German Marksmanship Badge. 11. There is no indication the applicant petitioned the Army Discharge Review Board for review of his discharge processing within that board’s 15-year statute of limitations. 12. The applicant provides (all available to the Board for review): a. NCO Evaluation Reports and Awards orders, certificates, and forms b. Photograph, Resume, Diplomas, and Credit Reports c. Employment Performance Reviews. d. Certificates of achievement, training, accomplishments, and completions e. Multiple character reference letter and/or endorsements from current and/or former commissioned officers, NCOs, and enlisted members, as well as civilians, some of which are new, and others were used during the court-martial. The authors speak of the applicant’s character, leadership, community relations, and dedications. All letters are available to the Board for review. 13. By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 14. In reaching its determination, the Board can consider the applicant's petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The evidence shows a special court-martial composed of officer and enlisted members convicted the applicant, contrary to his pleas, of three specifications of maltreatment of a subordinate and two specifications of indecent assault in violation of Articles 93 and 134, UCMJ. The adjudged and approved sentence is a bad-conduct discharge and reduction to E-1. b. The applicant's trial by a court-martial was warranted by the gravity of the offense charged. His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. c. The Board noted that the applicant has turned his life around after discharge as evidenced by his employment, certificates, and multiple character reference letters. However, the Board determined his post-discharge achievement do not outweigh the serious misconduct he committed, which led to his conviction. Therefore, the Board determined clemency in the form of an honorable or general discharge is not warranted 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 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 (Active Duty Enlisted Administrative Separations now) provides 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 provides 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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. 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) AR20220005644 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1