IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20230005370 APPLICANT’S REQUESTS: * Upgrade of his under other than honorable conditions discharge * Amend the authority, reason, separation code, and reentry code for separation to show "Secretarial Authority" * Permission to appear personally before the Board * Any other relief deemed equitable and just APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TAB A * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2-1 (Personnel Qualification Record – Part II) * Illegible document * Army Review Boards Agency Letter * Illegible document * Regional Support Command Orders * Corps Support Battalion memorandum * U.S. Army Reserve Personnel Center (ARPERCEN) memorandum * TAB B * Applicant's self-authored statement * TAB C * Police Department (PD) Diploma * PD Certificate of Appointment * Four PD Training Certificates * PD Commendation * PD Employee Report * FEMA (Federal Emergency Management Agency) Training Certificate * Governor's Congratulatory Note * District Attorney Commendation * City Attorney Certificate of Appreciation * City Congratulatory Certificate * U.S. Army Signal Battalion Certificate of Achievement * Three Reserve Component (RC) Noncommissioned Officer (NCO) Training Diplomas * Two certificates titled, "Commander's Special Recognition Award" * TAB D * Marriage Certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 the following: a. The applicant describes his background, noting he was born in and came to the United States when he was 5. Upon graduating from high school, he enlisted into the Regular Army and served in Germany and at Fort Bragg, NC. While on active duty, he earned the Army Commendation Medal, Humanitarian Service Medal, and Army Good Conduct Medal; in addition, he graduated from Primary Leadership Course and, after his separation, he attended his local community college while still working full time. b. A month after his release from active duty (REFRAD), the applicant enlisted into the U.S. Army Reserve (USAR) and continued serving until his 15 September 2001 discharge; he ultimately attained the rank/grade of first sergeant (1SG)/E-8. While still in the USAR, the applicant pursued NCO education courses, and his leadership acknowledged the quality of his service with awards. c. Concurrent with his USAR service, the applicant was also a member of his city's police force, where he rose to the rank of "Senior Lead Officer" before his January 2020 retirement. Officials at both local and State levels recognized him with numerous awards. d. The applicant discloses that, in September 1999, he started having a relationship with a female Soldier under his command. He understood the Army did not condone such a relationship, so he and the female Soldier tried to keep it a secret, but, in December 1999, she became pregnant. The applicant requested a reassignment to another Troop Program Unit (TPU), but because of his unit's leadership shortage, they asked him to stay, and the applicant elected to remain another year. e. After his son was born, a number of Soldiers in the unit learned the applicant was the baby's father; the applicant asked to retire, but, by that time, the battalion commander had already initiated an investigation, and he denied the applicant's retirement request. At the conclusion of the investigation, and on the date the applicant would have reached his expiration term of service (ETS), the command initiated an administrative separation board; the board found him guilty and recommended him for an under other than honorable conditions character of service, along with a reduction to private (PV1)/E-1. f. Several years later, the applicant and the now former female Soldier got married, and they have remained together for over 15 years; their son just turned 20, and he is currently attending a well-known military college, from where he hopes to earn a commission in the U.S. Marine Corps. 3. Counsel argues the applicant served for more than 20 years prior to committing the misconduct that led to his separation; the applicant admits he made a mistake, but, counsel contends, when one considers the totality of the circumstances, the applicant's punishment was neither fair nor equitable. a. The applicant's service record and his evaluations affirm that, until his temporary lapse in judgment, the applicant's service had been solid. Rather than allow the applicant to retire, however, the command chose to pursue a misguided administrative separation action and ultimately discharged him under other than honorable conditions. b. Counsel further points out that, not only was the applicant's military service notable for its honor and integrity, but he also distinguished himself as a civilian law enforcement officer, and, to this day, he remains an upstanding member of his community. c. Counsel submits that the applicant's transgression, which was the only blemish on the applicant's record, should be significantly mitigated by the fact that the applicant and the Soldier later wed, and are still married. Counsel concludes, "Given his strong and lengthy track record of selfless service and the complete lack of aggravating evidence, a temporary lapse in judgment should not have resulted in such a severe and lasting punishment. The Other Than Honorable characterization of service in this case was and remains entirely unwarranted." 4. The applicant provides: a. Documents from his military personnel record, which include the following: (1) ARPERCEN memorandum, dated 18 December 1996, and Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter); the letter affirms that the applicant had completed the required years of service to be eligible for retired pay at age 60. (2) First page of a 19 December 2000 memorandum, Subject: Separation Under AR (Army regulation) 135-178 (Enlisted Administrative Separations), chapter 7 (Misconduct). (The commander cited the 1983 version of AR 135-178, and, at the time, that version was current; however, effective 29 January 2001, the Army reissued the regulation and, with this change, the provisions formerly in chapter 7 moved to chapter 12, but the separation requirements for misconduct remained the same). (a) The memorandum referenced paragraphs 7-11b (A Pattern of Misconduct) and 7-11c (Commission of a Serious Offense) as the authorities for separation action; the commander stated the applicant had: * violated Article 92 (Failure to Obey a General Regulation), Uniform Code of Military Justice (UCMJ) and AR 600-20 (Army Command Policy) by having a personal relation with Specialist , and by socializing, on more than one occasion, with several junior Soldiers in the unit * violated Article 107 (False Official Statements), UCMJ, by making a false statement to an investigating officer (b) The commander further stated he was recommending the applicant for an under other than honorable conditions character of service, but the final decision rested with the separation authority. (3) Regional Support Command Orders, dated 15 September 2001, announced the applicant's reduction to PV1 and separation under other than honorable conditions, both effective 15 September 2001. (4) Signal Battalion Certificate of Achievement, dated in May 1981, awarded for the applicant's outstanding efforts during a 100 kilometer Ultra Marathon Relay Race to raise money for Army Emergency Relief (5) Three diplomas indicating the applicant completed NCO-level courses, and two "Commander's Special Recognition Award" certificates showing the applicant's commander named the applicant as the NCO of the Month for August 1984 and November 1985. b. Documents reflecting the applicant's completion of civilian police and FEMA training and commendations from city and State officials. Included were following two commendations for the applicant's actions as a police officer: (1) In September 1992, the applicant and his partner responded to a call; they found an individual stalking the complainant. The applicant and his partner realized this stalker had been arrested the day prior and was on bail for a misdemeanor. Following the re-arrest of the stalker, the applicant and his partner located all of the stalker's prior arrests and developed a chronology of the stalker's harassing interactions of the complainant; with that information, the District Attorney had sufficient evidence to charge the suspect with felony stalking. (2) In October 1992, a citizen called to report she had found a World War II hand grenade; with regard for his own life, the applicant took the hand grenade from the citizen and moved it to a safe location for the Bomb Squad to neutralize the grenade. c. The applicant submits a copy of his marriage certificate, affirming that, on 4 July 2005, the applicant and wed. 5. A review of the applicant's service record reveals the following: a. On 20 June 1977, the applicant enlisted into the Regular Army for 4 years. Upon completion of initial entry training and the award of military occupational specialty 36C (Wire Systems Installer/Operator), orders assigned him to a signal battalion in Germany, and, in or around November 1977, he arrived at his new unit. In October 1979, the applicant completed his overseas tour and orders reassigned him to a signal unit at Fort Bragg. b. On 19 June 1981, the Army honorably REFRAD the applicant and transferred him to the USAR to complete his military service obligation. His DD Form 214, as amended by a DD Form 215 (Correction to DD Form 214), shows he completed 4 years of net active duty service, and item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) reflected the following: Army Good Conduct Medal (1st Award), Army Commendation Medal, Humanitarian Service Medal, and two marksmanship qualification badges. c. In July 1981, U.S. Reserve Components Personnel and Administration Center orders directed the applicant's voluntary reassignment to a USAR Troop Program Unit (TPU), effective 1 July 1981. The applicant continued his USAR service, through three immediate reenlistments, and, effective on or about 5 June 1998, orders assigned him as the first sergeant (1SG) for a TPU quartermaster company. d. The applicant's separation packet is unavailable for review; however, the applicant provides a copy of his USAR discharge order, which shows, on 15 September 2001, the applicant's command reduced him to PV1 and separated him under other than honorable conditions. The regulatory separation authority is AR 135-178, with no authorizing paragraph, associated narrative reason, separation code, or reentry code. e. The U.S. Army Human Resources Command (HRC) maintains a Soldier Management System (SMS) database; it consists of a web-based collection of data, applications, and tools available to assist Career Managers of Active Army, Army Reserve, and Army National Guard (ARNG) Soldiers. (1) SMS shows the applicant's involuntary discharge, on 15 September 2001, and indicates the reason was "Misconduct – Minor Disciplinary Infractions." (2) SMS also includes the applicant's DA Form 5016 (Chronological Statement of Retirement Points), which states the applicant accrued 24 years, 3 months, and 18 days of qualifying USAR service, for retirement purposes. f. On 2 May 2018, HRC issued orders placed the applicant on the Army of the United States Retired List, effective 16 June 2018; the applicant's retired grade was master sergeant (MSG)/E-8. 6. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 7. The applicant requests the upgrade of his under honorable conditions separation. a. The absence of the applicant's separation packet means we are unable to determine the full circumstances of his separation; however, based on the applicant's submission of his separation order, and due to the lack of any evidence to the contrary, the Board presumes the applicant's leadership completed his discharge action in accordance with existing law and regulations. (1) AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). An applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than 50 percent chance that what an applicant’s claims is true. (2) The version of the military personnel records regulation, then in effect (AR 600-8-104 (Military Personnel Information Management/Records)), required case files for approved separation actions to be maintained in the affected Soldiers' official military personnel file; the regulation applied equally to USAR, Regular Army, and ARNG separations. b. During the applicant's era of service, and per the provisions of chapter 12, AR 135-178, commanders could separate USAR Soldiers for misconduct. (1) An under other than honorable conditions character of service was normally issued, but separation authorities could grant a general discharge under honorable conditions when warranted. (a) Under other than honorable conditions discharges could only be directed by a general officer in command who had a judge advocate or legal advisor, and no Soldier could receive this character of service without first being afforded the right to present his/her case before an administrative separation board. (b) Additionally, the discharge had to be supported by approved board findings and an approved board recommendation for discharge under other than honorable conditions. (2) Chapter 12 separation criteria included the following: (a) Paragraph 12-1a (Minor Disciplinary Infractions). Soldier showing a pattern of misconduct solely consisting of minor disciplinary infractions. (b) Paragraph 12-1b (A Pattern of Misconduct). A pattern of misconduct, consisting of discreditable involvement with civil or military authority, or conduct that was prejudicial to good order and discipline, and which violated the accepted standards of personal conduct found within the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. (c) Paragraph 12-1c (Commission of a Serious Offense). A serious military offense that warranted separation and carried a punitive discharge in the UCMJ for the same or similar offense. c. The Manual for Courts-Martial in effect at the time showed that violations of Article 92 (Failure to Obey a General Regulation) and Article 107 (False Official Statements) included punitive discharges among their maximum punishments. d. Chapter 14 (Secretarial Plenary Authority). Separation under this provision was granted at the prerogative of the Secretary of the Army, or his/her designee, and used when no other regulatory provision applied. It was to be exercised on a case-by-case basis, and the separating Soldier could receive either an honorable or an under honorable conditions (general) character of service. e. According to AR 635-5 (Separation Documents), in effect at the time, a separating Soldier's separation code and narrative reason for separation were tied to the regulatory separation authority, and the codes were assigned only to Soldiers separating from active duty and receiving a DD Form 214. For reentry codes, the regulation stated AR 601-210 (Regular Army and Army Reserve Enlistment Program) determined USAR reentry eligibility. (1) Reserve Component Soldiers on active duty because of self-terminating orders received a separation code of "NA" (not applicable); when ordered to active duty based on contingency operation orders, the operation's announcement provided guidance as to what, if any, separation code was issued. (2) AR 601-210, in effect at the time, stated, in paragraph 4-24j (Nonwaiver Medical, Moral, and Administrative Disqualifications) that prior service applicants for reentry had a nonwaivable disqualification if they were previously separated for misconduct and had completed 18 or more years of active Federal service. 8. 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. 9. 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: 1. After reviewing the application and all supporting documents, 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. The Board noted the applicant was in a leadership position and the fact that he remains married today does not eliminate the misconduct. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the narrative reason for separation with respective separation code, reentry eligibility code, and character of service the applicant received upon separation were not in error or unjust. Therefore, relief was denied. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. AR 135-178, in effect at the time, prescribed policies and procedures for the separation of USAR and ARNG enlisted Soldiers. a. Paragraph 2-9a (Honorable). An honorable characterization was appropriate when the quality of the Soldier’s service had generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. When Soldiers were discharged prior to their expiration term of service, separation authorities were to consider the following: * the extent of any infractions of discipline and the seriousness of any offenses * disqualifying entries in the Soldier's service record could be outweighed by subsequent honorable and faithful service performed over a greater period * the pattern of behavior, not an isolated instance, were to be considered the governing factor for determining character of service * unless otherwise ineligible, a Soldier could receive an honorable character of service if he/she received a personal decoration during his/her current term of service b. Paragraph 2-9b (General (Under Honorable Conditions)). A general discharge under honorable conditions was appropriate when a Soldier's service was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 2-9c (Under Other than Honorable Conditions). Soldiers separated for misconduct could receive this character of service; however, it could only be directed by a general officer in command who had a judge advocate or legal advisor, and no Soldier could receive this character of service without first being afforded the right to present his/her case before an administrative separation board. Additionally, the discharge had to be supported by approved board findings and an approved board recommendation for discharge under other than honorable conditions. d. Chapter 12. (1) Paragraph 12-1a (Minor Disciplinary Infractions). Soldier showing a pattern of misconduct solely consisting of minor disciplinary infractions. (2) Paragraph 12-1b (A Pattern of Misconduct). A pattern of misconduct, consisting of discreditable involvement with civil or military authority, or conduct that was prejudicial to good order and discipline, and which violated the accepted standards of personal conduct found within the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. (3) Paragraph 12-1c (Commission of a Serious Offense). A serious military offense that warranted separation and carried a punitive discharge in the UCMJ for the same or similar offense. e. Chapter 14. Separation under this provision was granted at the prerogative of the Secretary of the Army, or his/her designee, and used when no other regulatory provision applied. It was to be exercised on a case-by-case basis, and the separating Soldier could receive either an honorable or an under honorable conditions (general) character of service. 3. The Manual for Courts-Martial in effect at the time showed that violations of Article 92 (Failure to Obey a General Regulation) and Article 107 (False Official Statements) included punitive discharges among their maximum punishments. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. The Board is not an investigative body, and the applicant bears the burden of providing a preponderance of evidence to support claims of inequity and/or injustice. b. an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. AR 600-8-104, in effect at the time, required case files for approved separation actions to be maintained in the affected Soldiers' official military personnel file; the regulation applied equally to USAR, Regular Army, and ARNG separations. 7. AR 635-5 (Separation Documents), in effect at the time, a separating Soldier's separation code and narrative reason for separation were tied to the regulatory separation authority, and the codes were assigned only to Soldiers separating from active duty and receiving a DD Form 214. For reentry codes, the regulation stated AR 601-210 determined USAR reentry eligibility. Reserve Component Soldiers on active duty because of self-terminating orders received a separation code of "NA" (not applicable); when ordered to active duty based on contingency operation orders, the operation's announcement provided guidance as to what, if any, separation code was issued. 8. AR 601-210, in effect at the time, stated, in paragraph 4-24j (Nonwaiver Medical, Moral, and Administrative Disqualifications) that prior service applicants for reentry had a nonwaivable disqualification if they were previously separated for misconduct and had completed 18 or more years of active Federal service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005370 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1