IN THE CASE OF: BOARD DATE: 7 June 2021 DOCKET NUMBER: AR20190003394 APPLICANT REQUESTS: * an upgrade of the character of his service from under honorable conditions (general) to honorable * a more favorable Reentry (RE) Code * issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the completion of his first term of service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Marriage License, filed on 1 April 2014 * Orders 055-02, issued by 2nd Infantry Brigade Combat Team (BCT), 3rd Infantry Division (ID), published on 24 February 2016 * Criminal Investigation Division (CID) Form 94 (Agent’s Investigation Report), dated 10 August 2016 * DD Form 214, ending 10 April 2017 * Spouse’s Letter, dated 7 February 2019 FACTS: 1. The applicant states, in effect, a. The characterization of his service was unjust and too harsh because it was based solely on a single act of adultery for which he received nonjudicial punishment under Article 15, Uniform Code of Military Justice. He had never been in any other trouble before this one incident occurred and he took full responsibility for his actions. He and his spouse are still married and they have moved past the issue. He notes that his reenlistment and being awarded the Army Good Conduct Medal (AGCM) are evidence of his overall performance. The characterization of his service is hindering him from receiving benefits and properly taking care of his family. b. He provides a copy of the CID report shows that the female accuser lied to the CID agents about being married. He further contends that prior to being intimate with the accuser, she had given him alcohol. He had just returned from being deployed to Africa and his judgement was clouded from the alcohol and he was depressed. The applicant contends that the accuser preyed on military men and he was a victim. 2. On 23 April 2013, he enlisted in the Regular Army. The highest grade he held was specialist (SPC/E-4). 3. The applicant provides an Agent’s Investigation Report, dated 10 August 2016, which shows: a. A female complainant reported having consensual sex with the applicant; however, he later posted sexually explicit images of her to social media without her consent. She stated that when she confronted the applicant about his actions, he indicated that he posted the photos as a “joke.” This report further shows that the complainant originally gave a different name to CID agents and her real name was discovered through a social security number search. The search also determined she was married to a Seaman at the time of the investigation. b. The applicant was read his legal rights and waived them. He then reported that he had taken nude photographs of the complainant and posted two photographs on a friend’s social media page. He later deleted the photographs from his personal phone, and his friend’s social media page. He stated that he did not obtain the complainant’s consent prior to posting the photographs. 4. On 15 December 2016, the applicant completed a physical examination for the purpose of separation. He reported suffering from social anxiety and requested a referral to Behavioral Health. He also reported having a heart attack (the notes show “cardiac catheterization, well documented, cleared by cardiology on 14 November 2016”). 5. On 13 March 2017, the applicant's company commander informed the applicant that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, commission of a serious offense, with a character of service of under honorable conditions (general). His commander cited the applicant’s wrongful sexual intercourse with a woman not his wife. 6. On the same day, the applicant acknowledged receipt of notification of the basis for the contemplated action to separate him and of the rights available to him, including his right to consult with counsel prior to submitting his election of rights. 7. On 20 March 2017, after consulting with counsel, he elected to submit statements in his own behalf and requested representation by counsel. In his statement he took responsibility for his actions but requested an honorable discharge to allow him to use his full education benefits in pursuit of his college degree. He cited the honorable completion of his first term of service and his subsequent reenlistment as reasons to receive an honorable character of service. 8. The applicant’s battalion commander concurred with the recommendation to separate him before his expiration term of service; however, he recommended the applicant’s service be characterized as honorable. 9. On 23 March 2017, the applicant underwent a mental status evaluation, which shows, in part: * he was fit for full duty, including deployment * could understand and participate in administrative proceedings * could appreciate the difference between right and wrong * he met medical retention requirements (did not need a Medical Evaluation Board) * AXIS I: History of Anger Management Issues and Domestic Violence * he had follow-up appointments, however, the specific area was not identified * he had negative screening for post-traumatic stress disorder and traumatic brain injury * he denied illicit drug use or excessive alcohol use * he had been seen in Behavioral Health for anger management and received treatment for domestic violence * he would continue to be offered counseling and medication management treatment services as needed * he was mentally stable * he did not have a psychiatric disease or defect that warranted disposition through medical channels * personality disorder * he was cleared for any administrative action deemed appropriate by his command, including Chapter 14-12c separation 10. On 27 March 2017, the separation authority directed that the applicant be separated under the provisions of AR 635-200, paragraph 14-12c, commission of a serious offense, and that his service be characterized as general under honorable conditions. 11. On 10 April 2017, he was discharged in accordance with the separation authority's decision. His DD Form 214 shows he completed 3 years, 11 months, and 18 days of net active service. It further shows in: * Item 18 (Remarks), he had continuous honorable active service from 23 April 2013 to 23 June 2015 * Item 24 (Character of Service), his service was characterized as under honorable conditions (general) * Item 27 (RE Code), the entry “3” * Item 28 (Narrative Reason for Separation), the entry Misconduct (Serious Offense) 12. The applicant provided his marriage certificate and AGCM orders. He also provides a typed, unsigned request from his spouse written to the chain of command. She stated that she had forgiven the applicant for his mistake. He was a great man and father, and this one blemish should not cause him to receive a dishonorable discharge. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. A majority of the Board found the applicant's punishment under Article 15, Uniform Code of Military Justice, was sufficient as a response to his misconduct and clemency is warranted in this case. The majority found it would be appropriate to remove any barriers to reenlistment from his DD Form 214 and upgrade his character of service. Based on a preponderance of evidence, the majority determined the applicant's character of service should be changed to honorable, the reason for his discharge should be changed to Secretarial authority, and his RE Code should be changed to "1." 2. The member in the minority considered the applicant's statement, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The member in the minority found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the member in the minority determined the character of service the applicant received upon separation and his RE Code were not in error or unjust. 3. The Board found no basis for issuing the applicant a DD Form 214 for the period of his first enlistment. The regulation governing preparation of the DD Form 214 does not provide for issuing a DD Form 214 upon reenlistment. The Board unanimously determined that this portion of the applicant's request should be denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 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 the following entries: * Item 24 – honorable * Item 25 – AR 635-200, chapter 5 * Item 26 – KFF * Item 27 – 1 * Item 28 – Secretarial authority 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 any relief in excess of that described above. 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. b. It states that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Chapter 5 provides for separation under Secretarial plenary authority. 2. AR 601-210 (Regular Army and Army Reserve Enlistment Program), dated 8 February 2011, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; eligibility: qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; eligibility: ineligible unless a waiver is granted. c. RE-4 applies to Soldiers separated from last period of service with a non- waivable disqualification. d. Prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect. Applicants who have corrected RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized. No requirement to change RE code exists to qualify for enlistment. Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction. 3. AR 635-8 (Separation Processing and Documents) state to enter in Item 18 (Remarks) of the DD Form 214, for Soldiers who have previously reenlisted without being issued a DD Form 214 and separated with any characterization of service except “honorable,” enter “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). A new DD Form 214 will not be issued when there has been no break in service. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20190003394 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1