IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20230002100 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable. 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 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 is requesting his discharge be upgraded to honorable. He has been discharged from military service since 1999 and has since been a productive citizen in his community. He was discharged under charges that he knew violated the military code of fraternization and he did not fight it because he did not know what he was really facing. Since the discharge, he has learned that the charges brought against were based on circumstantial evidence which he believes could not be proven by himself or anyone else. He is asking for consideration because he has served proudly and has no regrets with respect to his military service. A review of his service record will show that he was an exemplary Soldier, fast tracking, and at the top of his military occupational specialty (MOS). He has proven himself as a viable citizen and his military record, prior to the incident that led to his discharge, should speak to the caliber of Soldier he was. He makes this request as he was informed legislation has changed. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 August 1987. b. His Personnel Qualification Record (Part I and Part II) includes the following: * promoted to Sergeant First Class (SFC) on 1 January 1999 * duty MOS listed as 91B (medical specialist) * assigned on 2 June 1997 as an instructor/writer at the U.S. Army Medical Department Center and School (AMEDDC&S) at Fort Sam Houston, TX c. The service record contained AMEDDC&S Regulation 600-8 (Improper Relationship Involving Student Personnel), dated 20 October 1995, which states in part: (1) The purpose of this regulation is to establish standards of conduct regarding treatment of student personnel. The goal of this regulation is to maintain and enhance the pride, motivation, skills, discipline, confidence, and reputation of all U.S. Army Medical Department Center and School (AMEDDC&S) personnel. Personnel subject to the Uniform Code of Military Justice (UCMJ) who fail to comply with the requirements of this regulation are subject to punishments under the UCMJ, as well as to adverse administrative action or other adverse action authorized by applicable United States Code sections or Federal regulations. (2) Entering into any public or private relationship with student personnel which is not required to accomplish the training mission. This includes, but is not limited to: * Gambling. * Consuming alcoholic beverages with, or in any socially mixing with, student personnel on or off post other than at approved unit activities. * Engaging in any action or relationship which involves or gives the appearance of partiality, preferential treatment, or improper use of rank or position for personal gain or advantage. * Engaging in any intimate or sexual relationship or activities, to include but not limited to, dating, handholding, kissing, embracing, caressing, or sexual intercourse. d. On 1 June 1999, the applicant was advised of his rights on DA Form 3881 (Rights Warning Procedure/Waiver Certificate) and with his signature he acknowledged he understood his rights. He subsequently rendered a sworn statement in which he admitted: * he purchased alcoholic beverages for a trainee (PVT ) * he had sexual intercourse on two occasions with PVT , in May 1999 * he knew PVT was a trainee e. On 24 June 1999, PVT signed a memorandum acknowledging she was granted immunity in order to testify against the applicant. She rendered two sworn statements in which she confirmed she recalled having sexual intercourse with the applicant on one occasion and was too inebriated to remember what happened during the second encounter. f. A DD Form 458 (Charge Sheet) shows on 28 June 1999, court-martial charges were preferred on the applicant for two specifications of violating a lawful general regulation by wrongfully engaging in intimate or sexual activities with PVT , who was at the time an AMEDDC&S student. g. The applicant consulted with legal counsel and requested a discharge in lieu of trial by courts-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * he was making the request of his own free will * maximum punishment * he was guilty of the charges against him or of a lesser included offense * he does not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he would be deprived of many or all Army benefits, he may be ineligible for many, or all benefits administered by the Veterans Administration, * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life h. On 15 July 1999, consistent with the chain of command recommendations, the Staff Judge Advocate, COL recommended approval of the applicant’s request for discharge in lieu of trial by courts-martial with the issuance of an Under Other Than Honorable Conditions Discharge. i. The service record is void of the separation authority’s approval memorandum. j. Orders 204-0100, dated 23 July 1999, discharged the applicant from active duty with an effective date of 28 July 1999. k. On 28 July 1999, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 11 years, 11 months, and 23 days of active service. It also shows he was awarded or authorized: * Army Commendation Medal (3rd Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Noncommissioned Officers Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon * Expert Field Medical Badge * Driver and Mechanic Badge with Driver W-Bar 4. On 17 October 2001, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 6. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service or in lieu of trial by court-martial. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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, 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 found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that attest to his post honorable conduct that might have mitigated the misconduct that resulted in the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The Board determined because the applicant was a senior non-commissioned officer at the time, he had adequate training and experience necessary to avoid conducting misconduct and was entrusted to set the example for subordinate Soldiers to emulate, and therefore, the discharge characterization was proper and fitting for the misconduct. Furthermore, the Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of his under other than honorable conditions (UOTHC) discharge to a honorable discharge. Therefore, the Board denied relief. 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 635-5 (Separation Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 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 based on 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) AR20230002100 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1