IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220008610 APPLICANT REQUESTS: Through counsel * reconsideration of his previous request to change his character of service from under other than honorable conditions to honorable * a personal appearance hearing via video/telephone * his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show: * a narrative reason for separation that reflects "Secretarial Authority", and * corresponding separation program number (SPN) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 26 May 2020, and 23 May 2022 * Counsel letter, 25 February 2022 * 9-character reference letters 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 AR20200008148 on 5 February 2021. 2. His counsel states: a. The applicant served during the Vietnam-era, when institutionalized discrimination was widespread especially in the military justice system. At the time, Black GIs organized into study groups and rap clubs at nearly every major U.S. base in Germany. He was a 21-year-old, African American Soldier stationed at Bad Kreuznach, Germany. It was at a demonstration where the applicant and his battle buddy first participated. The Soldiers were present at a demonstration outside of the base commander’s home protesting for the equal treatment of Black Soldiers and other minorities within the Army. A few days later they were taken into custody by U.S. Army Criminal Investigation Command (CID). b. CID took them to a German police station, where the two men participated in a line-up. A German woman accused them of attempted rape. The alleged attempted rape occurred at an off-base residence where the two Soldiers had visited another service member, although the two had not been present on the night in question. The Army conducted an Article 32 investigation and hearing. The Army found that there was not enough evidence for a court-martial and dropped the matter. Despite the charges having been dropped, the Army then turned the two Soldiers over to German authorities. c. While under Germany’s jurisdiction, the applicant was denied rights designed to protect Soldiers in this exact predicament. Initially charged in July of 1970, the two Soldiers were not tried until the following December. Their requests for an American attorney were denied. The attorney they received did not speak English and as a result, needed to rely on an interpreter. Furthermore, the two men were denied any confrontation of their accuser. They were excluded from the courtroom while their accuser testified against them, and from another witness, whose hearsay was admitted into evidence. Additionally, there were Soldiers who could verify the applicant and alibi, but the Army refused any assistance and would not provide the witnesses. d. After a three-day bench trial, the two were convicted. There was no transcript of the trial and as a result, they were denied a fair appeal. The applicant’s present-day attorney reached out to the Bad Kreuznach, Germany, District Attorney’s office who responded that any record from that time had likely been destroyed. It was between their lower court convictions and appeals that the applicant and left Germany without permission and returned to the U.S. e. The District Court in a hearing at which it rejected the [men’s] proffer of evidence to support their factual theories. It then denied their application for a preliminary injunction and granted the Secretary of Defense’s motion to dismiss for failure of the complaint to state a justiciable cause of action. The most significant feature of the court’s holding was that even if the men’s allegations were proven, it was beyond the power of the court to order corrective action. f. The applicant and then sought an appeal. The appellate court ultimately found the action was non-justiciable, since foreign policy is handled through treaties and ultimately through the executive branch of government. After the appeal, the men were sent back to Germany to serve their sentence. The applicant was ultimately discharged under conditions other than honorable, in 1973. In total, he served 795 days for "Convenience of Government." He has spent the rest of his life pursuing other endeavors. g. The applicant suffered an injustice, he was falsely accused by a foreign government and turned over to that government despite the Army’s failure to produce a court-martial for the same charge. He has lived a modest life and seeks to right a wrong that has weighed heavily on his conscience for almost fifty years. There is no record of misconduct or bad behavior in his military record. It is abundantly clear that today’s Status of Forces Agreement includes the rights that were unquestionably denied to him. For those reasons his discharge should be upgraded to an honorable discharge. h. In its previous decision letter, the ABCMR found no evidence of post-service achievements or letters of reference in a support of a clemency determination. The letters in their entirety are included in the exhibits attached to this brief. (See full statement). New evidence has been submitted. 3. The applicant was inducted into the Army of the United States on 22 July 1969. He completed training and was awarded the military occupational specialty (MOS) 76A (Supply man). 4. On or about February 1970, the applicant was assigned to Company A, 8th Infantry Division, Supply and Transportation Battalion, in Germany. 5. His DA Form 20 (Enlisted Qualification Record) shows in item 42 (Remarks), he was arrested by civil authorities on 20 July 1970 and charged with rape. He was convicted and sentenced to three years in a German penitentiary. 6. His DA Form 20 also shows, absent without leave (AWOL) status from 26 May 1971 to 7 June 1971. 7. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 8. The applicant’s record show his case summary from the U.S. Court of Appeals for the D.C. Circuit, 24 March 1972, wherein the court determined the contemplated surrender of the appellants to the Federal Republic of Germany was a matter beyond the purview of the court. The petition was ordered dismissed for failure to set forth a basis for the requested relief. 9. Special Orders Number 157, issued by Headquarters, 8th Infantry Division, 6 June 1973, shows, in part, the reduction of the applicant and * Authority: Paragraph 7-26 b (3) Army Regulation (AR) 600-200 (Enlisted Promotions), Separation Program Number (SPN) 284 (Unfitness) * Grade Reduced to private * Reduced by: Commander, 8th Infantry Division * Reason: Discharge from service with Undesirable Discharge * Effective Date: 5 June 1973 10. A memorandum, issued by U.S. Army Military Personnel Center, Chief Enlisted Separation Section, Separation Branch, 7 June 1973, which shows in part, approval of applicant’s separation under AR 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), section VI, SPN 284 (civil court conviction). Comments: [Applicant] will be discharged upon release from confinement and returned to continental U.S. An Undesirable Discharge Certificate (DD Form 258A) will be issued. Case filed in official military personnel file. By order of the Secretary of the Army. 11. The applicant was discharged from active duty on 9 October 1973, under the provisions of AR 635-206, SPN 284, with the issuance of an under other than honorable certificate. His DD Form 214 shows he completed 4 years, 2 months, and 6 days of active service. His DD Form 214 also shows in: a. item 24 (Decorations) - National Defense Service Medal and Marksman Qualification Badge with Rifle Bar, M-16 b. item 26a (Non-Pay Periods Lost Time) - 26 May 1971 to 7 June 1971. c. item 30 (Remarks) – shows in part, retained in service 795 days for convenience of the government, confinement dates unknown. 12. His records show an article titled, “Black GI Resistance During the Vietnam War”, by in 1990, which shows, … in some respects the military is better than civilian life, other respects the military is worse. The arbitrary nature of command authority can mean a miserable existence for those who serve under prejudiced commanders. Studies conducted during the Vietnam era confirm that institutionalized discrimination was widespread. The Department of Defense Task Force found that a greater number of black enlisted men received non-judicial punishment [25 percent] greater than their proportionate number [12 percent]. 13. On 5 February 2021, in ABCMR Docket Number AR20200008148, the Board denied his request for an upgrade of his discharge. 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 counsel's statement, the applicant's 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 evidence, the Board determined the character of service the applicant received upon separation and the reason for separation and associated codes were not in error or unjust. 14. The applicant provides multiple character reference statements, which show in part: a. A letter issued by 11 December 2021, states he has been friends with the applicant for over 10 years. Applicant has always kept high standards and encouraged children in the complex where he worked to join the military. b. A letter issued by 13 December 2021, states she is honored to have her uncle become a part of her and her kid’s life. c. A letter issued by 14 December 2021, states he is a journalist, and finds the applicant to be honest and forthright. d. A letter issued by 16 December 2021, states they grew up in the same community. The applicant cares a lot about the less fortunate by giving a helping hand when possible. e. A letter issued by 17 December 2021, states they attended the same high school, she was married to his brother (deceased). Applicant is caring, honest and dependable. f. A letter issued by 17 December 2021, states she has known the applicant for more than 40 years, he is honest and a hard worker. g. A letter issued by 27 December 2021, states he has known him for 50 years, he comes from a great family, they attended the same church and high school. Applicant is peaceful and caring. h. A letter issued by 29 December 2021, states he has known the applicant since 2014. The applicant was an employee of the Apartments, he was professional and had a respectful demeanor. i. A letter issued by undated, states he met the applicant in school grade one through 12, they were class brothers. Applicant is caring and compassionate and has had that reputation since high school. He has never heard of him harming anyone. His parents were pillars in the community. He is a man of character and a positive influence. 15. On 21 November 2022, the Criminal Investigation Division stated, a search of the Army criminal file indexes utilizing the information provided revealed no records pertaining to the [applicant]. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing through counsel, 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 through counsel, 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 noted the applicant and his counsel provided post service character letters of support to weigh a clemency determination. The Board agreed the character letters demonstrated the applicant has become a pillar within his community and well respected by those who know him now. The Board made note of the applicant 4 years of service and awards received during his periods of honorable service. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh 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. Therefore, relief was denied. 2. The Board determined that the applicant and his counsel have not demonstrated by a preponderance of evidence that the contents of the applicant’s service record are substantially incorrect and the allegations are without merit. The burden of proof rest with the applicant and his counsel. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of a discharge upgrade or a change to the applicant’s narrative reason and SPN. 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 AR20200008148 on 5 February 2021. 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 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The SPN "284" was the correct code for Soldiers separating under the provisions of Army Regulation 635-206 by reason of civil conviction. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. This regulation provides 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. Paragraph 5–3 (Secretarial plenary authority) provides that: (1) Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. (2) Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special Headquarter, Department of the Army directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. 3. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of one year. An undesirable discharge was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008610 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1