IN THE CASE OF: BOARD DATE: 2 February 2021 DOCKET NUMBER: AR20200006046 APPLICANT REQUESTS: In effect, reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of support from a retired police detective FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20110000169 on 21 July 2011 and AR20110016496 on 16 February 2012. 2. The applicant states he was falsely accused of rape in 1994 when he was stationed at Fort Riley, KS. a. The applicant asserts the rape accusation was made in retaliation for his having worked as an informant for the Fort Riley Criminal Investigation Command (CID), and because he had assisted several local civilian police organizations in their efforts to combat the sale of illegal drugs and guns. b. Later, during the applicant's Article 32 investigation, the applicant's accuser (Ms. G__) recanted her story, but prosecutors refused to accept her revised testimony. The applicant argues, once his accuser recanted, the prosecution should have exonerated him of all charges; as a result of the prosecution's failure to clear him, the applicant suffered a gross injustice. c. Additionally, the applicant believes his counsel was unhappy about his role as a CID informant. Instead of helping to advocate the applicant's innocence, counsel told the applicant a lot of lies just to get him to sign the chapter 10 paperwork; for example, counsel said the applicant's character of service would be automatically upgraded after a year (of course, this never happened). Counsel also claimed his hands were tied, and contended the applicant was likely to be convicted because of the applicant's race; counsel said the applicant was too masculine and too black. His counsel's words made the applicant feel like all of his volunteer work for the CID and local police was being used against him; the applicant felt hated, even by the Fort Riley Judge Advocate General (JAG) officers. (The applicant notes he was young and in fear when all this transpired). c. As a CID informant, the applicant had put his life on the life, but he felt he was doing the right thing by keeping drugs and illegal activities away from the post; in the process, he acquired a lot of enemies. The applicant declares, his only mistake was meeting with his accuser (Ms. G__) on post the night of 6 January 1994. Earlier that night, he had been doing uncover work for the local police department. On his return to base, his friend, Specialist M__, introduced the applicant to Ms. G __, and they had consensual sex; afterwards, the applicant left Fort Riley with Ms. G__ and brought her back home. Around 5 am, the police picked up the applicant, and, after questioning, they charged him. 3. The applicant provides a letter from a retired police detective (Mr. S__), who states he was a detective in a civilian police department located near Fort Riley, and, along with two CID agents, he served on the department's Drug Task Force. During this period, the CID agents introduced him to a Soldier (the applicant) who was willing to work as a confidential informant. While he cannot recall precisely what led the applicant to become a confidential informant, the retired police detective can affirm the applicant's efforts proved effective; the applicant handled himself professionally, and, with the applicant's help, the Task Force successfully built cases against a number of local drug dealers. 4. The applicant's service records show: a. On 16 November 1992, the applicant enlisted into the Regular Army for 3 years. Effective 1 February 1993, the applicant's advanced individual training leadership promoted him to private first class (PFC)/E-3. After completing initial training, orders transferred the applicant to Fort Riley, and he arrived on or about 6 May 1993. b. On 10 August 1993, the applicant's Fort Riley unit reported him as absent without leave (AWOL); the applicant returned to military control on 12 August 1993. Effective 16 August 1993, the applicant was reduced in rank to private (PV2)/E-2 (the applicant's service records do not show whether this reduction was due to administrative action or the result of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ)). c. DA Form 4187 (Personnel Action), dated 27 December 1993, reflects the applicant's rank reduction from PV2 to private (PV1)/E-1; the form does not give an authority for this reduction. d. On 23 February 1994, the applicant's Fort Riley unit preferred court-martial charges against him for raping Ms. G__ on 7 January 1994. On 20 April 1994, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). The applicant affirmed he had been advised of the charges against him, his available rights, and the basis for voluntarily requesting discharge; the applicant also acknowledged he was guilty of the charge and indicated he would not be submitting statements in his own behalf. e. On 29 April 1994, the separation authority approved the applicant's request and directed discharge under other than honorable conditions; he also reduced the applicant to the lowest enlisted grade. On 9 May 1994, the applicant was discharged accordingly; his DD Form 214 shows he completed 1 year, 5 months, and 22 days of his 3-year enlistment contract, and he was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. f. On 25 July 1994, the applicant petitioned the Army Discharge Review Board, requesting an upgrade to honorable. (1) The applicant argued, until the night of 7 January 1994 (the night he allegedly raped Ms. G__), he had been a source for the Fort Riley CID; the applicant contended the CID threatened him, saying he needed to continue working for them in order to defeat the rape allegation. In addition, the applicant's counsel showed racial bias against the applicant, asserting counsel made remarks which described the applicant as "big and black," and that the applicant's appearance would, in effect, result in the applicant's court-martial conviction; the applicant maintained this showed him his counsel had given up on him. Further, the applicant's accuser (Ms. G__) had made a prior sexual assault allegation, and, at the time of the incident involving the applicant, she was seeing a behavioral health provider. The applicant maintained, apart from accepting two previous NJPs, he had not been in any other trouble while on active duty. He contended the CID and the military prosecutor had lied to him and had tricked him. (2) On 15 November 1996, the ADRB conducted a records review and, after determining the applicant's discharge had been proper and equitable, denied the applicant's request. The ADRB noted the applicant had consulted with counsel prior to voluntarily requesting discharge under chapter 10, AR 635-200, and, in his request, he had admitted he was guilty of committing rape. g. On 5 January 2001, the applicant requested to personally appear with counsel before the ADRB to argue for an upgraded character of service. (1) The applicant provided letters of support, as well as certificates and other documents reflecting his post-service accomplishments. He additionally provided a self- authored statement, in which he wrote: (a) Ms. G__ accused the applicant of sexually assaulting her on 7 January 1994; Ms. G__ lived in a nearby x, while the applicant was stationed on Fort Riley. Subsequent to the alleged rape, a medical examiner examined Ms. G__; the medical examiner's report stated "there (had been) intercourse but without evidence of forced entry." The applicant explained to the ADRB that he and Ms. G__ had performed oral sex on each other, after which the applicant showered and dressed; Ms. G__ said she was going to shower later (the applicant noted he should have realized then something was wrong). (b) After the applicant dressed, Ms. G__ demanded he pay her $250; the applicant told her all he had was $60. Although he gave her the $60, Ms. G__ got very upset that the applicant had not paid her the full $250; the applicant stated, he had had no idea Ms. G__ was in business for herself. Ms. G__ then told the applicant to take her home, so the applicant drove her back to her house; along the way, they stopped at a store and bought sodas and chips. (c) The applicant maintained the only thing he had done wrong was to have sex in the barracks, and this meant, according to his faith, he had committed fornication. Later, during his trial proceedings, the applicant's counsel offered him an "early out" through "plea bargaining." The applicant acknowledges he did not fully understand the implications of what his counsel offered, and he later felt he had made a real dumb mistake; nonetheless, he took the early out because he was afraid he would be "railroaded," based on the fact he is black, and his accuser was white. (d) The applicant acknowledged he had done some irresponsible things, and that what he had done later resulted in his acceptance of two NJPs. He attributed his previous misconduct to immaturity and a misunderstanding of military law; however, looking back, he now felt he should have done a better job of holding his ground and proving his innocence. (e) Historically, the applicant could not help but think of the many black Soldiers in the past who had been wrongfully convicted of similar allegations; while skin color, in and of itself, was not a defense, the applicant was certain it would have had a negative effect on the sentence he received. Had Ms. G__ been black, none of this would ever have happened; she knew what she was doing, and understood all along he was innocent. (2) On 14 March 2001, the applicant appeared before the ADRB with counsel and presented testimony, arguments, and evidence. On 19 March 2001, the ADRB reconvened and, after considering all of the evidence and testimony, voted to deny the applicant's request. The ADRB stated it gave full consideration to the applicant's faithful and honorable service, as well as the applicant's infractions of discipline; they further took into account the seriousness of the offense charged. The ADRB noted, however, that, after consulting with counsel, the applicant had voluntarily, and in writing, requested separation, and, in so doing, he had admitted he was guilty of the stipulated offense. h. On 22 December 2010, the applicant applied to the ABCMR for an upgraded character of service. (1) The applicant asserted it had been over 15 years since he had made the bad choices that ended his career; he asked the Board for mercy and forgiveness so he could correct his past errors. In support of his request, the applicant submitted documents from his official military personnel file. (2) On 21 July 2011, the ABCMR voted to deny the applicant's request, stating the evidence showed he had waived his opportunity to appear before a court-martial to prove his innocence, and, in his current request to the Board, the applicant had not provided the Board any evidence that was sufficiently compelling to mitigate his character of service. i. On 30 July 2011, the applicant requested the Board reconsider his upgrade request. (1) The applicant presented five new arguments: (a) His alleged victim, Ms. G__, had been barred from entering Fort Riley, after the military police had accused her of stealing from the Post Exchange; had Ms. G__ simply abided by the rules, she would never have been on Fort Riley, and the applicant would not have been accused of sexually assaulting her. (b) The applicant asserted he was the second person, within a year, that Ms. G__ had accused of sexual assault; the applicant was not sure where the other alleged assault had occurred. On 7 January 1994, after being with Ms. G__, the applicant drove her back to a local Job Corps Center; Ms. G__'s only complaint at the time was that she had been out past 12, and, because of that, she was going to be kicked out of the Job Corps program. When the applicant dropped her off at the Job Corps gate, the guard told Ms. G__ this was the last time she could be late, and he said she was in "hot water." (c) At the Article 32 hearing, the applicant's roommate testified he had walked in on the applicant and Ms. G__ having sex; from his roommate's perspective, Ms. G__ did not seem threatened, and she did not make any effort to ask for help. The applicant also pointed out Ms. G__ had not accused him of rape when they were in his barracks room, and, despite the presence of both males and females in the barracks hallway, as he and Ms. G__ departed the applicant's room, Ms. G__ never tried to approach anyone and ask for help. It was only after they gone to the room of his friend (Specialist M__) that Ms. G__ asked what time it was, and then panicked when she learned it was past 12. They asked the applicant to rush Ms. G__ back to the Job Corps Center. (d) The applicant additionally pointed out, at the applicant's Article 32 hearing, the applicant's counsel "was not favorable in aiding" the applicant's case. In spite of the fact counsel knew about Ms. G__'s previous larceny allegations, her earlier sexual assault accusations against another black male, and that Ms. G__ had subsequently recanted her story, the applicant's counsel nonetheless claimed the applicant did not have a fighting chance; according to counsel, this was because: * the applicant was a black male and his accuser was a white female * the applicant had a big and muscular build, and the color of his skin would be a decisive factor * the applicant had accepted two previous NJPs (e) The applicant affirmed he had been working for CID as an informant several months prior to the alleged sexual assault, and that he turned over a lot of people to law enforcement; he had had hopes of becoming a police officer, but his hopes were dashed by Ms. G__'s accusations. (2) On 16 February 2012, the ABCMR denied the applicant's reconsideration request. The Board stated the applicant had been charged with violating the UCMJ, and, after consulting with counsel, had voluntarily requested separation in lieu of trial by court-martial; additionally, the applicant's separation request showed he admitted his guilt. The Board found the applicant's rights were fully protected throughout the separation process, and noted, had the applicant elected to do so, he could have voiced his current contentions by submitting a statement in his own behalf. The Board further observed the applicant's service record contained no acts of significant achievement or valor, and his record did not support the issuance of either an honorable or under honorable conditions character of service. 5. The applicant essentially asserts his under other than honorable conditions discharge was unjust; he contends he chose to request discharge under chapter 10, AR 635-200 because, as a black man charged with raping a white woman, he believed he would not be treated fairly at a court-martial; in effect, this perception was only reinforced when, despite his accuser having recanted her allegation, the military prosecutor refused to exonerate the applicant. Further, the applicant's counsel advised him his trial's outcome would be likely be affected by the color of his skin. The applicant opines his sexual assault charge was actually made in retaliation for his having worked as an informant for the Fort Riley Criminal Investigation Command (CID), and because he had helped several civilian police organizations in the surrounding area combat the sale of drugs and illegal guns. In support of this latter claim, the applicant provides a letter from a former police detective who affirms the applicant was an informant for the detective's task force, and, with the applicant's help, the police were able to bring charges against a number of drug dealers. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which punitive discharges were among the maximum punishments, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in- lieu of trial by court-martial. According to the Manual for Courts-Martial, in effect at the time, the maximum punishment authorized for violations of UCMJ Article 120 (Rape) included a punitive discharge. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD 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 preferred charges, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the serious misconduct 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 Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred. The request had to include the Soldier's admission of guilt. 2. Manual for Courts-Martial, in effect at the time, showed the maximum punishment authorized for violations of UCMJ Article 120 (Rape) included a punitive discharge. 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. 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. 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) AR20200006046 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200006046 9 ABCMR Record of Proceedings (cont) AR20200006046 8