IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230000259 APPLICANT REQUESTS: Reconsideration of his previous request for: * dismissal of all criminal charges imposed upon him * upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter to the Army Board for Correction of Military Records (ABCMR) * self-authored letter to the Department of Veterans Affairs (VA) * DA Form 67-8 (Officer Evaluation Report (OER)) * three 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 ABCMR in Docket Number AR20180004706 on 13 January 2020. 2. The applicant provides a self-authored letter that is available in its entirety for the Board's consideration. He states he has evidence that was not previously considered. He has proof that reasons given for the Board's previous denial were based on incorrect information. He believes he was done an extreme disservice. Not only was the reasoning given incorrect, but nearly half of what was put in writing and sent through his Congressman were Iles and innuendos. He would like to address the findings found in part 5 of the Board's denial. a. Regarding conduct unbecoming, much of this is just immature rumors between enlisted Soldiers about a single, tall, good looking young officer, not much older than themselves. Using enlisted Soldiers to routinely to talk to other enlisted is not true. On a few occasions he was asked about certain individuals and guided into a few inappropriate answers by girls filtering and asking him if he wanted information on or to pass something on about some individual. On those occasions he would awkwardly try to get out of the conversations. Through gossip, things would get blown out of proportion. There was no evidence that he followed up on any conversations with enlisted because he never did. b. Regarding fraternization and cohabiting with enlisted. Totally not true. was a noncommissioned officer (NCO) who had worked for him In Korea as a dog handler. He came to Fort Carson, CO, 6 or 7 months after the applicant did. He was trying to get back to Korea and needed a place to stay. He rented a room from the applicant who was in a 2 bedroom condominium at the time and was waiting for his girlfriend to come from Korea. The applicant asked permission, and it was granted by his superior and cleared all the way up the chain of command. was a dog handler, and at the time the applicant was commander of the detention center; so, did not work around him. That is why he was not charged with any fraternization concerning an NCO that stayed with him for about 4 months. If someone was paying attention it should have been seen that there were no charges brought for that situation. The fraternization charge was brought concerning the military police (MP) female that brought to their condominium, along with a few other of his friends. Later that night, the applicant returned home after hitting the bars and went to bed alone. He was awakened by a female whom he did not know, and she came in alone. There was never any reference made to his roommate or any other male being with her. He finds the charge of having sex with male and female to be an outrageous accusation. He was investigated thoroughly and surely would have been charged if there was any proof. He has never engaged in that kind of activity and finds it to be an abomination. Regarding the female, yes he had sex with her. What male in that position would not have? He did not find out until later that she was an MP. She did not work for him. She worked on patrol, and he was commanding the detention center. He had no power over her whatsoever. She had some kind of obsession with him that he was unaware of. He tried to get rid of her on many occasions, but she would just turn up. Finally, he was getting married and was able to ensure she knew it was over and to stay away. There was no adultery. In the Article 32 investigation, that charge was dropped. c. The most egregious charge that he had forceable sex with a female had absolutely no merit and was never mentioned anywhere in any investigation. If there was any proof, he would have been charged and sent to prison. If anyone had even bothered to look at his background, they would have seen that while serving his State in crime prevention he spent much effort working with and for Arkansas Rape crisis. In 1991, he was the rape crisis man of the year. d. Nothing in the letter denying his upgrade had any merit, except some of the he- said she-said, had partial truths. He does not think such immature talking by someone with unknown motives or that he mistakenly left a message to someone he was on a committee with should ruin his life. He had already made the decision to get out of the Army and pursue Federal law enforcement so, he let his guard down somewhat. e. In conclusion, he would like for someone with an open mind to review these facts that are new to this rebuttal and contradict the main reasoning for his denial. He has included several letters from those with whom he served and a letter he sent to the VA claims board. In that letter, he described what really happened to him. He got on the wrong side of a colonel (COL) that was power hungry and liked his ass kissed. When he stood his ground and told the truth, the COL took it as disrespect. When the COL found out the applicant had applied to get off Active Duty and return to Reserve Status, he decided the applicant was not a team player and punished him and ruined his life. The applicant provides several examples of the COL displaying unfair and hypocritical behavior that he attests can all be verified. f. He does not have much time left and just wants his name to be cleared. He wants to be able to have the American flag over his coffin, as his father did before him. He is a good person who worked hard all of his life and tried to stay as close to law enforcement as he could. So much was lost in his life that he cannot begin to explain how bad it has hurt his life and family. He has been married to the same woman that he married 36 years ago and has three children and two grandchildren. He did his best to live and serve to the best of his ability. He has helped many people through his work in crime prevention. He believes he has proven his case. If he thought he was guilty of any of these things that are in the letter of denial, he would not be wasting the Board's time or his; and he would have a felony record at Fort Leavenworth, KS. 3. On 31 August 1977, the applicant enlisted into the U.S. Army Reserve (USAR) as a cadet in the Reserve Officers’ Training Corps. Upon completion of college, he was honorably discharged for the purpose of accepting an appointment as a commissioned officer. 4. On 18 May 1979, he was appointed as a second lieutenant (2LT)/O-1 in the USAR. 5. He was ordered to active duty for a period of 3 years for the purpose of attending the MP Officer Basic Course and to fulfill his active duty service obligation. 6. A DA Form 1574 (Report of Proceedings by Investigation Officer/Board of Officers) shows an investigation was conducted under the provisions of Article 15-6 of the Uniform Code of Military Justice (UCMJ) to determine the validity of several allegations against the applicant. The investigation was conducted from 11 April 1986 until 23 April 1986, and the findings and recommendations were completed on 25 April 1986. a. The findings were as follows: (1) The applicant was on a first name basis with the acting sergeant (/SGT)/E-5 . (2) The applicant left a message for /SGT to call him with his home phone number and first name on it. (3) The applicant used private first class (PFC)/E-3 to gain information and pass on information to enlisted females he was interested in. (4) The applicant lived with SGT [] during part of 1985. (5) The applicant dated Special Agent a couple years ago. b. The recommendations were as follows: (1) The applicant not be allowed to serve in a supervisory position. (2) That the applicant put in to resign his commission at the earliest opportunity. (3) That / SGT be made aware of the fact that some of her actions are perceived by others to be flirtatious. 7. A DA Form 1574 shows an investigation was conducted under the provisions of Article 15-6 of the UCMJ to determine the validity of several allegations against the applicant. The investigation was conducted from 13 May 1986 until 29 May 1986, and the findings and recommendations were completed on 30 May 1986. a. The findings were as follows: (1) That the applicant had on several occasions demonstrated conduct unbecoming of an officer. (2) That the applicant had violated the fraternization policy by: a) cohabitation with an enlisted member of the MP Community; b) dating enlisted members of the MP Community; c) using enlisted Soldiers to aid his attempts to make contact with enlisted female Soldiers; d) routinely referring to enlisted Soldiers by their first names. (3) That the applicant had engaged in sexual activities with male and female enlisted members of the MP Community. (4) That the applicant had forceable sex with a female enlisted Soldier. (5) That the applicant, while a married officer, had sex with a female enlisted Soldier. (6) That the applicant had made unsolicited advances towards female enlisted Soldiers. (7) That the applicant misused his position as MP Duty Officer to fraternize with an enlisted female Soldier, in an attempt to have an intimate relationship. b. The recommendations were as follows: (1) That charges under the UCMJ be preferred for each finding in section IV. (2) That appropriate administrative actions be taken to flag the applicant. (3) That the applicant be placed in a duty position that eliminates any possible contact with female subordinates. 8. On 17 June 1986, the applicant's immediate commander recommended that he be tried by General Court-Martial (GCM). 9. An Investigation Hearing was conducted under the provisions of Article 32(b) of the UCMJ on 11 July 1986. When the applicant was called to the stand to testify, he invoked his right to remain silent during the hearing. 10. A DD Form 457 (Investigating Officer's (IO) Report) rendered on 15July 1986 shows an investigation was conducted under the provisions of Article 32 of the UCMJ to determine the validity of charges against the applicant. The investigation was conducted from 13 May 1986 until 29 May 1986, and the findings and recommendations were completed on 30 May 1986. The remarks were as follows: a. Defense objected to the non-availability of staff sergeant (SSG)/E-6 , formerly assigned to Fort Carson, CO and currently he was stationed at Ft Bragg, NC. Defense stated he was to be a character witness; therefore, the IO did not attempt to contact him. b. Reasonable doubt existed in the IO's judgement that Specification 2 could be proven in court. Specialist four (SPC)/E-4 had known the applicant prior to this incident and she was not introduced to him by SGT as an enlisted Soldier. He was currently assigned to the 260th MP Co, in Korea. The IO contacted him on 10 July 1986, and he was going to send a sworn statement regarding this incident. Without SGT testimony, the IO did not believe this charge could be proven. c. Specification 3 cannot be proven based on SP4 testimony. She testified that no sexual intercourse occurred as specified. Recommend that this charge be dropped. d. Specification 5 should be re-worded to drop all but "I was only kidding about having an affair in the meeting, but you should think about it." According to SGT testimony, that was the only remark of a sexual nature that he made. e. None of the charges preferred against the applicant had any witnesses to prove the allegations other than the victim. The IO would find it hard to find him guilty without more proof than he currently had. The only offenses the IO could see as having reasonable grounds for a GCM were fraternization and conduct unbecoming an officer and gentleman. f. The IO recommended that the applicant resign his commission in lieu of a GCM. 11. On 30 July 1986, Trial Counsel contacted COL , the Commander of U.S. Army Garrison, Fort Carson, CO, and notified him of the IO's additional recommendations, specifically that Specification 2 and 3 of the charge be dismissed, and that the remaining specifications of the charge be referred to a GCM. COL , after having been advised of such, stated he still recommended trial by GCM. 12. On 31 July 1986, COL , stated he had reviewed the charges, along with the completed Article 32(b) investigation, summaries of expected testimony and documentary evidence upon which the charges were based. In his opinion, each specification alleged an offense under the UCMJ; each offense was supported by the evidence in the file; and trial by court-martial was warranted. He recommended the applicant be tried by GCM. 13. The applicant tendered his voluntary resignation for the good of the service in lieu of trial by court-martial. On 13 August 1986, a Department of the Army Ad Hoc Military Review Board considered the charges, the evidence, and the applicant's chain of command recommendations. After careful consideration, the ad hoc board recommended acceptance of the applicant's resignation and the issuance of an UOTHC characterization of service. This recommendation was approved on 31 August 1986. 14. On 3 September 1986, a Military Personnel Center message was issued which shows the applicant's resignation for the good of the service in accordance with Army Regulation 635-120 (Officer Resignations and Discharges), Chapter 5, was approved with a discharge UOTHC. 15. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged from the USAR on 17 September 1986 under the provisions of Army Regulation 635-120, Chapter 5, due to conduct triable by court- martial with a Separation Program Designator code of "DFS." His service was characterized as UOTHC. He was credited with completion of 5 years, 5 months, and 12 days of net active service and had no lost time. 16. The applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Army Regulation 635-120, for the good of the service - in lieu of trial by court-martial. A characterization of UOTHC was authorized and normally considered appropriate. 17. The applicant petitioned the Army Discharge Review Board (ADRB) for relief. On 4 December 1992, the applicant was informed that the ADRB, after careful consideration of his military records and all other available evidence, had determined that he was properly and equitably discharged. Accordingly, his request was denied. 18. The applicant petitioned the ABCMR for relief. On 20 March 2020, the applicant was informed that the ABCMR considered his application under procedures established by the Secretary of the Army and denied his request. 19. The applicant provides the following additional evidence in support of his petition, all of which is available in its entirety for the Board's consideration: a. A self-authored letter to the VA, wherein he provides the explanations for why he believes he was wrongly accused of several violations of the UCMJ and ultimately resigned from the Army. b. His OER rendered for the period from 29 May 1984 through 28 February 1985, which shows, in part: (1) He received "2s" in Part IV (Performance Evaluation – Professionalism) in the categories of: * Performs under physical and mental stress * Is adaptable to changing situations (2) His rater indicated that he usually exceeded requirements and recommended that he be promoted with contemporaries. (3) His senior rater evaluated his potential as above center mass and opined that his performance in the future would greatly improve. He recommended that the applicant be given assignments of increased responsibilities. c. Three letters rendered by two former servicemembers who served with the applicant and a civilian colleague who all speak highly of his character, duty performance, professionalism, athleticism, desire to help others, and love for his family. 20. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 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 applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found the letters of support provided by the applicant sufficient as a basis for partial relief. Based on a preponderance of the evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 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 partial amendment of the decision of the ABCMR set forth in Docket Number AR20180004706 on 13 January 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's character of service to fully honorable. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-120, in effect at the time, prescribed policy and procedure governing resignation and discharge of Army officer personnel. Chapter 5 provided: a. An officer could submit a resignation for the good of the service: * when court-martial charges were preferred against him/her with a view toward trial by GCM * when under a suspended sentence of dismissal; or * for homosexuality prior to elimination being initiated or court-martial charges preferred b. The officer could not be reappointed. The separation would be at the convenience of the Army. c. Normally an officer's service is characterized as honorable. However, such service could be characterized as under honorable conditions when: * circumstances involved serious misconduct * punishment for misconduct had been imposed which rendered the officer unsuitable for further service * a physical disability had resulted from intentional misconduct or willful neglect, or which occurred during a period of unauthorized absence * directed by Headquarters, Department of the Army (HQDA) for a violation of the Military Personnel Security Program d. An officer's service would be characterized as UOTHC when: * the officer resigned for the good of the service * the officer was convicted by civil authorities of any offense and finally sentenced to confinement in a Federal or State penitentiary or correctional institution * a violation of the Military Personnel Security Program occurs and if directed by HQDA * in connection with elimination proceedings for misconduct, moral or professional dereliction or in the interests of national security if approved by the Secretary of the Army e. An officer who resigned for the good of the service under this chapter, generally was ineligible for most Veterans benefits regardless of how the discharge was characterized. If the officer was previously discharged from a term of service under honorable conditions, eligibility for Veterans benefits could be predicated on the previous term of service. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000259 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1