IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220008128 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge APPLICANT'S SUPPORTING DOCUMENT(S) 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 tried three times with no evidence. He then was released to a new duty station and brought back after seven months to be charged with assault on a case that should have been dropped. His fingerprints were not found and there was no evidence of an assault. He did not commit any of those acts. This discharge was wrong and unjust and has destroyed everything he worked to accomplish. 3. The applicant enlisted in the Regular Army on 17 August 2004. He was awarded military occupational specialty 11B (Infantryman). He reenlisted on 11 February 2007, for a 5-year service obligation. The highest rank he attained was specialist/E-4. 4. The applicant served in Afghanistan in support of Operation Enduring Freedom from 5 November 2006 through 1 March 2007. 5. On 3 May 2007 the Criminal Investigation Department (CID) initiated an investigation based upon notification from the Sexual Assault Response Coordinator at Fort Polk, LA, that a female Soldier had been assaulted by the applicant. 6. The applicant states in a sworn statement, dated 3 May 2007 that he and the female Soldier had exchanged contact information and on 2 May 2007 she invited him to her barracks and informed him to bring alcohol. She informed him that she was seeing a married man at the time, and the applicant would have to leave soon. They continued to talk and drink, and her boyfriend never came over. She became intoxicated and took off her shorts. He helped her in bed and went back to his room. He told his roommate what happened. He tried to contact her through phone calls and text messages, but she never responded. 7. By sworn statement, dated 3 May 2007, the female Soldier alleges that the applicant took advantage of her sexually while they had been drinking. 8. By sworn statement, on 18 September 2007, the applicant stated that he was not entirely truthful in his previous statement. He had in fact had oral sex and fondled the alleged victim and when she asked him to leave, he left. He made a poor judgment in going to her room and drinking heavily. He had returned from deployment and was going through a break-up with his wife, and he was drinking heavily. 10. The applicant on 27 September 2007 was afforded the opportunity to undergo polygraph examination, however he declined the opportunity. 11. Court-martial charges were preferred against the applicant on 20 March 2008, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * one specification of with the intent to deceive, make to a special agent, an official statement, to wit: that he did not touch the alleged victim's vagina, or words to that effect, which statement was totally false, and known by the applicant to be false, on or about 3 May 2007 * one specification, for committing sodomy with the alleged victim by force and without consent of the alleged victim, on or about 2 May 2007 12. The applicant’s record contains five character reference letters, dated 6 May 2007 and 6 May 2008, attesting to him being a dependable, reliable, and outstanding Soldier. He demonstrates a great leadership style whose award history speaks for itself. He should remain on active duty or given an honorable discharge. 13. The applicant consulted with legal counsel on 30 June 2008 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected to submit statements in his own behalf. Wherein he states: c. Through his time in the Marines and serving in the Army for 4-years, two of his biggest goals were to attend ranger school and to deploy. While in Afghanistan he was awarded a Combat Infantryman Badge and an Army Achievement Medal for training his platoon on the M-2, M-19, and the M-240B. He also received an Army Commendation Medal for volunteering for every combat mission while in theater. He knew it was wrong of him to give a false statement to CID. He was afraid that his wife would find out that he was alone in a room with another woman. This has been the worst experience in his life. d. He wanted to return back to Afghanistan with his unit, but his actions made it impossible. Due to his actions, he has lost his wife of ten years. He is requesting a Chapter 10 discharge, not because he want out of the Army, but because he knows he was wrong for giving a false statement. He has let his chain of command down by not being in Afghanistan to help them fight. He was wrong for being in that room that night. He did not force himself upon her. 14. On 1 July 2008, the alleged victim was contacted while she was serving in Iraq. She was informed that the applicant had requested discharge in lieu of trial by court- martial. She did not support the request and wanted the issue to be tried by court- martial. Subsequently, on 3 July 2008, the alleged victim decided not to go forward with her request for trial by court-martial. 15. The separation authority approved the applicant's request for discharge on 11 July 2008, in lieu of trial by court-martial. He directed his reduction to lowest enlisted grade and the issuance of a UOTHC discharge. 16. Accordingly, the applicant was discharged on 25 July 2008. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 3 years, 11 months, and 9 days of net active service. He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Afghanistan Campaign Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon. 17. 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. 18. 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: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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, USC, 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20220008128 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1