IN THE CASE OF: BOARD DATE: 3 June 2021 DOCKET NUMBER: AR20190002257 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states, in effect, that his discharge was unjust due to Military Sexual Trauma. He believes that he received a general under honorable conditions because of the incident. 2. The applicant enlisted into the Regular Army on 1 July 1986 and he was awarded military occupational specialty 94B (Food Service Specialist). He was assigned to his first duty station, Headquarters and Headquarters Company, 2nd Brigade, Fort Riley, Kansas, on or around 25 November 1986. 3. A final Criminal Investigation Division report, dated 30 January 1987 contains the following information: a. The incident involving the applicant occurred on 26 December 1986 between 0300 and 0500 hours. b. The applicant was titled for committing sodomy and indecent acts with another. c. The victim in the report is the United States Government. d. The statues pertinent to the results of this investigation are the following Articles of the Uniform Code of Military Justice (UCMJ): * Article 125 – Sodomy * Article 134 – Indecent Acts with Another e. The basis for the investigation was, on or about 9 January 1987 at about 1835 hours Special Agent F received a telephonic notification from Staff Sergeant T of Alpha Company, United States Army Garrison (Law Enforcement), Military Police Desk Sergeant. He stated that the applicant was allegedly orally sodomized by Sergeant W over the Christmas holiday. f. Special Agent F conducted an interview with the applicant and a DA Form 2823 (Sworn Statement) dated 9 January 1987, states the following information: (1) How long have you known SGT W? He informed the agent that he had known of the NCO since November 1986 and that he did not go to his room for any special occasion. (2) Has SGT W ever given you any indication prior to 25 December 1986 that he was gay? “No” (3) Do you work for SGT W? “Yes” (4) Why did you go to his room on 25 December 1986? “Just to visit, no special reason” (5) After the two drinks, would you consider yourself to have been drunk? “Yes, under the influence of the drinks at least” (6) When you woke up and found SGT W sodomizing you, did you try to get away? “No” (7) Did you tell SGT W to stop? “No” (8) While SGT W was masturbating you, did you tell him to stop? “No” (9) Did SGT W force you to masturbate him? “No, he started the action of my hand masturbating him and after a while he let go and I continued.” (10) Why didn’t you tell him to stop or make an attempt to leave? “I was in shock. I figured that if I did whatever he wanted me to do, it would just pass. I didn’t know what frame of mind he was in and figured if he was sick enough to do this, there was no telling what else he would do.” (11) Did SGT W threaten you at all during these actions? “No” (12) After you ejaculated, why didn’t you leave the room then? “I just fell asleep, probably still out of shock.” (13) Has SGT W told you to remain silent about the events that night? “Yes” (14) Has anything happened between you and SGT W since 26 December 1986? “On 6 January 1987, about 1900 I was riding with SGT W from Manhattan to FRK and he asked to see my hand. He then took my hand and placed it on the inside of his thigh. I jerked my hand away instantly and told him “Come on guy, I’m not in the mood for any of this. I have enough to worry about.” (15) Why did you wait until tonight to report this? “I reported this to my First Sergeant yesterday. The reason I waited was because I just wanted to forget the whole thing, but it was eating at me until I had to tell someone. I went on pass from 30 December 1986 to 4 January 1987 to my home and I just couldn’t forget it. When I got back I wanted to see the Chaplain and went to my First Sergeant to get an appointment and told the First Sergeant.” g. A DA Form 3881 (Rights Warning Procedure/Waiver Certificate) dated 9 January 1987, indicated that Sergeant W was being suspected or accused of sodomy and or indecent acts with another. h. Special Agent F conducted an interview with Sergeant W and a DA Form 2823 (Sworn Statement) dated 9 January 1987, states the following information: (1) Did you at or about 0300, 26 December 1986, orally sodomize the applicant by placing your mouth on his genitals? “No” (2) Did you at the same time masturbate the applicant? “No” (3) Did you attempt to have the applicant masturbate you by taking his hand and placing it on your penis? “No” (4) Why would the applicant render a sworn statement to the effect that you did these things? “I have no idea” (5) Was the applicant in your room during the evening of 25 December 1986 and early morning hours of 26 December 1986? “Yes” (6) Did the applicant spend the night in your room? “Yes” (7) Where did the applicant sleep? “On the floor” (8) Where did you sleep? “In my own bed” (9) Has anything happened between you and the applicant to make him accuse you of being a homosexual? “No” (10) Does the applicant work for you? “I’m his barracks supervisor, but he doesn’t work for me at the mess hall” (11) How much did the applicant have to drink on 25 and 26 December 1986? “He had about 9 or 10 Jim Beam and Cokes and I had about the same” (12) Is there anything you wish to add to this statement? “No” i. Special Agent F conducted an interview with two witnesses that stated the following: (1) On or about 22 January 1987 at 1535 hours, Private (E-2) D, of Headquarters and Headquarters Company, 2nd Brigade, stating that he was the applicant’s roommate at the time of the incident. He stated that on 4 January 1987, the applicant told him that Sergeant W had performed fellatio upon the applicant in Sergeant W’s room on Christmas night of 1986. The applicant told his roommate that he and Sergeant W had been drinking a lot and that sometime during the night the applicant woke up to find Sergeant W’s mouth on his genitalia and that he was in a total state of shock. Private D stated that he was in his assigned room all night and that the applicant was not there. Private D assumed that the applicant stayed in Sergeant W’s room all night since he did not come back to their assigned room. Private D also stated that he did not believe the applicant was lying or was homosexual in any manner. (2) On or about 22 January 1987 at 1405 hours, Specialist B, of Headquarters and Headquarters Company, 2nd Brigade, stating that he was Sergeant W’s roommate at the time of the incident. According to Specialist B there was no indication prior to 9 January 1987 to believe that Sergeant W was homosexual. Specialist B also stated that on 9 January 1987, the applicant told him that Sergeant W performed fellatio upon him on 25 December 1986, in Sergeant W’s barracks room. Specialist B indicated that he had been Sergeant W’s roommate since November 1986 and had not seen or heard of any conduct by Sergeant W to indicate that he may be homosexual. The witness further stated that Sergeant W did consume a great deal of alcohol daily. j. On or about 9 January 1987 at 2145 hours, Sergeant W was placed under apprehension for the offenses of sodomy and indecent acts with another and transported him to the Fort Riley Criminal Investigation Division Office. k. On or about 9 January 1987 at 2212 hours, Sergeant W was advised of his rights which he waived and rendered a sworn statement denying he performed fellatio upon the applicant and further denying he masturbated the applicant. l. On or about 22 January 1987, Sergeant W was advised of his rights a second time by Special Agent N, which he waived and rendered the following oral statement. Sergeant W stated that on 25 December 1986, he ate Christmas dinner with his Mess Sergeant and then returned to his barracks room where he met the applicant. He states that he drank about a half-gallon of Jim Beam Whiskey, and at least two glasses of wine within a few hours. Sergeant W did not recall going to bed but did say when he woke up, he was in his bed and the applicant was on the floor. He also states that the applicant did not mention anything about any homosexual activity at that time, and in fact did not make any accusations until about a week later. Sergeant W further stated that it was possible that he did perform fellatio on and masturbate the applicant due to his intoxicated condition, but he did not recall doing so. He further stated that he knew he had a problem with drinking and had to drink every day to stay content. m. On or about 12 January 1987 at 1300 hours; Special Agent F discussed the investigation with the Staff Judge Advocate Captain P. Captain P stated that due to the lack of resistance on the part of the applicant, sufficient probable cause existed to believe that the applicant also committed the offenses of sodomy and indecent acts with another. n. On or about 23 January 1987 at 1510 hours; Special Agent F discussed the investigation again with the Staff Judge Advocate. He again stated that there was sufficient probable cause to believe that the applicant and Sergeant W committed the offenses of sodomy and indecent acts with another. 4. The applicant’s record contains two DA Forms 2496 (Disposition Form), dated 9 February 1987, which contain the following information: a. The immediate commander informed the applicant of the recommendation of separation per Army Regulation (AR) 635-200 (Enlisted Personnel Separations) Chapter 14-12c on the basis of having indecent acts with another, sodomy. b. Additionally, the immediate commander informed the applicant of the following rights: * to consult with consulting counsel and/or civilian counsel at no cost expense to the government within a reasonable amount of time * submit written statements in his own behalf. * obtain copies of all documents sent to the separation authority in support of the separation action * to waive any of the afore mentioned rights c. the applicant acknowledged receipt of his commander's notification and that he was advised of his right to consult with counsel prior to making any election of rights. d. the applicant consulted with counsel, who advised him of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of a waiver of his rights; the applicant made the following acknowledgements and election of rights: e. the applicant was afforded and waived the opportunity to consult with appointed counsel. The applicant declined to submit statements in his own behalf and he understood he could withdraw any waiver of his rights up until the date the separation authority directed or approved his separation. f. the applicant understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He further understood that if he received an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life 5. On a date not specified, the applicant’s immediate commander recommended the applicant’s separation under the provisions of AR 635-200, paragraph 14-12c, with a general character of service. The intermediate commander stated the indecent acts and sodomy warranted a punitive discharge and that Soldiers who commit these types of offenses have no place in the United States Army and should be processed for separation. 6. On 9 February 1987, the applicant’s Battalion Commander recommended the applicant’s separation under the provisions of AR 635-200, paragraph 14-12c, with a general character of service. 7. On 25 February 1987, the applicant’s Brigade Commander recommended the applicant’s separation under the provisions of AR 635-200, paragraph 14-12c, with a general character of service and that paragraph 1-21a be exercised in the disposition of the case. 8. A memorandum, issued by the Commander, Headquarters, 1st Infantry Division (Mechanized), Fort Riley, Kansas, on 1 April 1987, Subject: Recommendation for Separation Under the Provisions of AR 635-200, includes the following information. a. Separation action and soldier’s conditional waiver request have been reviewed; conditional waiver is approved. b. Soldier will be issued a General discharge certificate. 9. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharge from military service after completing 9 months and 9 days of active service, and contains the following entries: * item 24 (Character of Service) - under honorable conditions (general) * item 25 (Separation Authority) - Army Regulation 635-200, paragraph 14-12c * item 26 (Separation Code) - JKQ * item 27 (Reenlistment Code) - RE-3 * item 28 (Narrative Reason for Separation) - Misconduct-commission of a serious offense 10. The applicant's military record does not contain any aggravating factors such as misconduct. 11. The Board's attention is invited to the reference section to review the Under Secretary of Defense for Personnel and Readiness memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under DADT or prior policies. a This policy does not "specifically" apply to the applicant, in that he was not discharged for an admission of homosexuality/bisexuality or the DADT policy, however, the issues surrounding his discharge are similar enough in nature that the Board is not bared from applying Secretary authority in this case nor the corrective measures outlined in this memoranda. For the corrections/amendments to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct b. Separation under Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies. 12. The Board should consider the applicant's statements and his service record in accordance with the published equity, injustice, or clemency determination guidance. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was 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 consideration requesting a discharge upgrade. Upon review of the applicant’s available military records the Board found evidence of military sexual trauma and considered this a factor as the applicant was the victim. Based on this, the Board determined that the character of service the applicant received upon separation was in error or unjust and relief was warranted and granted relief for correction of the applicant’ s records to show his narrative reason as secretariat authority and his characterization of service as honorable. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX XXX XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant an amended DD Form 214 to show in: * item 24 (Characterization of Service): Honorable * item 28 (Narrative Reason for Separation): Secretarial Authority 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 635-200 (Active Duty Enlisted Administrative Separations), dated 30 January 1987, in effect at the time of the applicant's discharge, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 3 of this regulation addressed character of service/description of separation. (1) Paragraph 3-7a. states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. (2) Paragraph 3-7b. states 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. b. Paragraph 5-3 (Secretarial plenary authority) - states, 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. 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 HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. c. Chapter 14-12c, Commission of a Serious Offense, applies to the following personnel: (1) Soldiers who commit a serious military or civil offense, if the specific circumstances of the offense warrant separation arid a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts Martial; (2) An absentee returned to military control from a status of absent without leave or desertion may be separated, for commission of a serious offense; and (3) Soldiers in paragraph 14-12c(2)(d)(e), or (f) against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action. will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation under paragraph 14-:12a, b, or, c, as applicable. Other personnel (first time offenders below the grade of sergeant, and with less than 3 years of total military service, active and reserve) may be processed for separation as appropriate. “Processed for separation” means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. 2. The Under Secretary of Defense for Personnel and Readiness memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under DADT or prior policies. a. The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * SPD code to "JFF" * character of service to "HONORABLE" * RE code to an immediately-eligible-to-reenter category b. For the above corrections/amendments to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct c. The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. 3. 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) AR20190002257 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1