IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20230005013 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty), 4 November 1976 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 10 February 1988 * Disabled American Veteran, Contact Brief Form, dated 24 February 2023 * Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veteran Service Organization as Claimant’s Representative), dated 24 February 2023 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b), however, the Army Board of Correction of Military Records (ABCMR) conducted a substantive review of his 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 not saying his discharge was unwarranted. He paid the penalty for his infraction, and he feels it is time for his discharge to be upgraded to a minimum of an under honorable conditions (general). It would be unjust not to upgrade his discharge after all these years, he has paid the price for his infractions. 3. The applicant completed periods of honorable enlisted service, for which he was issued a DD Form 214, prior to his reenlistment in the regular Army on 26 January 1977. He conducted two more reenlistments on 28 February 1978, and 28 November 1981, and then subsequently executed an extension of his enlistment on 3 March 1986. 4. A Report of Mental Status Evaluation, dated 28 October 1985, was conducted prior to him conducting Drill Sergeant training. The evaluations show, he was qualified for Drill Sergeant training; the evaluation did not note any mental illness or behavioral health conditions. 5. A DD form 458 (Charge Sheet) shows, the following charges and specifications were preferred against the applicant – a. Charge I: Violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey an order or Regulation) – (1) Specification 1: the applicant, did on or about 14 December 1987, violate a lawful general regulation by passing a note requesting a personal relationship to PVT , a Soldier in training, such conduct not required to accomplish the training mission. (2) Specification 2: the applicant, did on or about 19 December 1987, violate a lawful general regulation by giving a card to PVT , a Soldier in training, requesting a personal relationship, such conduct not required to accomplish the training mission. (3) Specification 3: the applicant did, did on or about 20 December 1987, violate a lawful general regulation by giving to PVT , a Soldier in training, his phone number for personal reasons, such conduct not required to accomplish the training mission. (4) Specification 4: the applicant, did, on or about 20 December 1987, violate a lawful general regulation by calling PVT , a Soldier in training, requesting to see her for personal reasons, such conduct not required to accomplish the training mission. (5) Specification 5: the applicant, did, on or about 6 January 1988, violate a lawful general regulation by calling PVT , a Soldier in training, into his office alone and demanding to know if she was interested in a personal relationship with him, such conduct not required to accomplish the training mission. (6) Specification 6: the applicant, did, on or about 23 December 1987, violate a lawful general regulation by giving a card to PVT , a Soldier in training, requesting a personal relationship, such conduct not required to accomplish the training mission. (7) Specification 7: the applicant did, did, on or about 25 December 1987, violate a lawful general regulation by calling PVT , a Soldier in training, and asking her “would she like to be wined and dined because he would be in, such conduct not required to accomplish the training mission. (8) Specification 8: the applicant did, on or about 24 December 1987, violate a lawful general regulation by giving a card to PVT , a Soldier in training, and saying “ you’re my new girlfriend”, such conduct not required to accomplish the training mission. (9) Specification 9: the applicant, did, on or about 24 December 1987, violate a lawful general regulation by giving a card to PVT , a Soldier in training, and saying “ Hi Santa Clause, am I your new boyfriend, such conduct not required to accomplish the training mission. (10) Specification 10: the applicant, did, on or about 28 December 1987, violate a lawful general regulation pulling PVT , a Soldier in training, by the arm and asking her to dance and by saying to her: “imagine a warm fire, wine, and soft music," such conduct not required to accomplish the training mission. (11) Specification 11: the applicant, did, on or about 1 January 1988, violate a lawful general regulation by hugging PVT , a Soldier in training, such conduct not required, to accomplish the training mission. (12) Specification 12: the applicant, did, on or about 1 January 1988, violate a lawful general regulation by hugging PVT , a Soldier in training, such conduct not required to accomplish the training mission. (13) Specification 13: the applicant, did, on or about 2 January 1988, violate a lawful general regulation by saying to PVT , a Soldier in training, “what would it take to marry you,” such conduct not required to accomplish the training mission. (14) Specification 14: the applicant, did, on or about 27 December 1987, violate a lawful general regulation by engaging in a conversation about sexual preferences and positions with PVT , a Soldier in training, such conduct not required to accomplish the training mission. (15) Specification 15: the applicant, did, on or about 28 December 1987, violate a lawful general regulation by going to Moncrief Army Hospital to visit PVT , and expressing a desire to engage in a social relationship with her, such conduct not required to accomplish the training mission. (16) Specification 16: the applicant, did, on or about 1 January 1988, violate a lawful general regulation by kissing, hugging, and engaging in sexual intercourse with PVT , a Soldier in training, such conduct not required to accomplish the training mission. b. Charge II: Violation of the UCMJ, Article 125 (Sodomy), Specification: the applicant, did, on or about 1 January 1988, commit sodomy with PVT . c. Charge III: Violation of the UCMJ, Article 134 (False swearing), Specification: the applicant, did, on or about 8 January 1988, wrongfully and unlawfully subscribe under oath a false statement in substance as follows, “did not have no improper relationship with a PVT , I did write her a letter in fun, but it was a joke between myself and PVT , stayed here in the Columbia area the whole time of Exodus as far as going to Carrollton or wherever it was, I have never been there," which statements you did not then believe to be true. 6. A DA Form 2166-6 (Enlisted Evaluation Report (EER), for the rated period March 1987 through January 1988 shows the applicant receive a relief for cause EER; at the time the report was rendered he was serving in the rank/grade of sergeant first class (SFC)/E-7 with a date of rank of 23 August 1986. His rating chain notes he has been relived of his duties as a Senior Drill Sergeant for improper association with female Soldiers. 7. On 26 January 1988, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge for the Good of the Service if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. In his request, he acknowledged: a. He understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. b. He had been advised and understood the possible effects of an under other than honorable discharge. As a result of the issuance of such a discharge he would be deprived of many or all Army benefits that he may be ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a veteran under both state and federal law. c. He also understood that once his request for discharge was submitted, it may be withdrawn only with consent of the commander exercising court-martial authority, or without that commander’s consent, in the event trial results in an acquittal or the sentence does not include a punitive discharge even though the courts could have adjudged one. 8. On 26 January 1988, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate. 9. On 1 February 1988, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 10. The applicant was discharged on 22 July 1986, under the provisions of Army Regulation 635-200, chapter 10 (For the Good of the Service in Lieu of Court-Martial); he received a separation code of "KFS" and a reentry code of "3,3C." His DD Form 214 contains the following entries of information: a. He completed 9 years, 11 months, and 13 days of net active service during the covered period. b. He received, in part, the following awards: * Army Achievement Medal * NCO Professional Development Ribbon (3rd Award) * Army Commendation Medal (3rd Award) * Army Good Conduct Medal (4th Award) * Drill Sergeant Identification Badge c. Item 18 (Remarks) contains the statement, "ENLISTMENT THIS PERIOD: 780228-811127." 11. There is no indication the applicant applied to the Army Discharge Review Board within that Boards 15 -year Statute of limitations. 12. The applicant provides a/an: a. Disabled American Veteran contact form dated 24 February 2023, requesting assistance in filing his application for correction of military records. b. Veterans Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative), dated 24 February 2023, 13. A member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 14. The Board should 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 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 the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to a general under honorable conditions 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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. 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. c. 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. 3. Army Regulation 635-5 (Separation Documents), prescribes the policies and procedures for completing the DD Form 214, to include the following instructions for completing item 18: enter a list of enlistment periods for which a DD Form 214 was not previously issued; for example, "Immediate reenlistments this period: 761210-791001." 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. 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) AR20230005013 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1