IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220008233 APPLICANT REQUESTS: Reconsideration of his previous application for upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), dated 1 June 2022 * Self-authored statement 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 AR20110003627 on 23 August 2011. 2. The applicant states he served his country for 8 years. The finding in his court case was not right, his lawyer for his case didn’t fight for his behalf. Just a German official doing whatever they want, just no justice here. He didn’t have a fair chance; his record wasn’t bad in the Army. This case needs to be looked at; he couldn't get a fair trial in a foreign country. 3. The applicant enlisted in the Regular Army on 21 January 1976. He was awarded military occupational specialty 31C (Single Channel Radio Operator) and 31K (Combat Signaler). He reenlisted on 24 July 1979, and again on 24 May 1983, for four years. The highest rank/grade he attained was sergeant/E-5. 4. On 2 June 1986, the applicant was placed under military control after being charged with rape and causing bodily injury to a German National. 5. On 17 December 1986, the applicant was found guilty by the Federal Republic of Germany Civil Court of raping and causing bodily injury to a German National on 13 April 1986. He was sentenced to 3 years confinement in a German prison. 6. By legal review on 29 December 1986, it was concluded that under all the circumstances the applicant received a fair trial. 7. On 14 April 1987, the Federal Court of Justice (Germany) considered the applicant’s appeal of his conviction. Accordingly, his appeal was dismissed on the merits since a review of the decision based on the appeal did not show an error of law to the disadvantage of the applicant. 8. The applicant's immediate commander notified him on 22 April 1988, that he was initiating actions to separate him under the provisions of Army Regulation(AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (Commission of a Serious Offense), citing the applicant's conviction of rape by a German civil court with 3 years confinement. 9. On or about 22 June 1988, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions (general) were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. Additionally, he: a. He elected to submit a statement in his own behalf; however, his statement is not available for review. b. He waived his right to consideration of his case by an administrative separation board contingent upon him receiving a general discharge. He understood that if the separation authority refused to accept his conditional waiver that his case would be referred to an administrative separation board. 10. An administrative separation board held a hearing to determine if the applicant should be eliminated from the service. The Board recommended that he be discharged from the service because of misconduct by reason of civil court, with a UOTHC discharge. By legal review, the applicant’s Chapter 14-12c action was found to be legally sufficient to support discharge. 12. Consistent with the board’s findings and recommendations, the separation authority approved the recommended discharge on 19 January 1989. He directed the applicant's reduction to the lowest enlisted grade and the issuance of an UOTHC Discharge Certificate. 13. On 2 June 1989, the applicant declined a release from active duty physical examination and understood that this election cleared him for out-processing with no further medical examination. 14. The applicant was discharged on 2 June 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of AR 635-200, Chapter 14-12c, for misconduct (commission of a serious offense). His service was characterized as UOTHC. He completed 11 years, 4 months, and 12 days of active service this period. He was awarded or authorized the: Army Service Ribbon, Overseas Service Ribbon (3rd Award), Army Good Conduct Medal (3rd Award), NCO Professional Development Ribbon, Expert Badge M-16 Rifle Bar, and Sharpshooter Badge with Hand Grenade Bar. 15. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment. 16. The applicant petitioned the Army Discharge Review Board (ADRB) on 4 February 1991, to have his UOTHC discharge upgraded to an under honorable conditions (general) discharge. The ADRB voted to deny relief. 17. The applicant petitioned the ABCMR on 16 February 2011, requesting to have his discharge upgraded. The Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the records. 18. 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. BOARD DISCUSSION: 1. 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. The applicant was discharged from active duty due to Misconduct after he was found guilty by the Civil Court of raping and causing bodily injury to a National on 13 April 1986. He was sentenced to 3 years confinement in a prison. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 :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 adding to the applicant’s DD Form 214, ending 2 June 1989, the entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 19760121 UNTIL 19830523 2. 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 AR20110003627 on 23 August 2011. 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 635-8 (Separation Processing and Documents) provides: for 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). Then, enter the specific periods of reenlistment as prescribed above. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 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) AR20220008233 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1