IN THE CASE OF: BOARD DATE: 20 April 2021 DOCKET NUMBER: AR20200008208 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC88-09279 on 18 October 1989. Specifically, he requests: a. His dishonorable discharge be upgraded to an honorable discharge; b. Restoration of his rank/grade to specialist five (SP5)/E-5; c. Revocation of General Court-Martial Order Number 9, the sentence imposed, and removal of his felony conviction from civil law enforcement files; and d. The issuance of a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) showing the requested changes. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) with self-authored statement * Attachment A1 – A3 – General Court-Martial Order Number 9, dated 26 February 1982 * Attachment A4 – Opinion of the Court, dated 21 June 1983 * Attachment A5 – Petition for Grant of Review * Attachment A6 – Notice to the Accused, dated 15 July 1983 * Attachment A7 – Insert Sheet to DA Form 2-1, Record of Court-Martial Conviction * Attachment A8 – General Court-Martial Order Number 155, dated 28 April 1986 * Attachment A9 – Order Number 093-03, dated 23 May 1986 * Attachment B1 – B17 – excerpt from Military Personnel Records * Attachment C1 – C16 – excerpt from Medical Records * Attachment D1 – D10 – Character Reference Letters (ten) * Attachment E1 – E2 – Civilian Employment History FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC88-09279 on 18 October 1989. 2. The applicant states: a. On or about 28 July 1981, while on his lunch break, he noticed a woman that he recognized and they made small talk. She asked for a ride and he agreed. They flirted with each other while he was driving. He pulled off the main road and they had consensual sex. When the act was finished she stated that she would walk, and he returned to work. Later that day, the military police picked him up for questioning regarding a rape earlier that day. b. He admitted to having sex with a woman that was not his wife. He was arrested and detained. He plead not guilty because he did not believe that he committed a crime. He was falsely accused and convicted based on the false accusation of rape. Morally, what he did was wrong but he was young and she was willing. He takes full responsibility for the poor choices and bad decisions he made on that day. He lost everything: a promising career; a wife and children in a divorce; and most of all, seeing the disappointment in his mother’s eyes. c. He has been gainfully employed for more than 35 years and currently operates a big rig for a long-haul trucking company. He is very active in his church and serves in leadership roles. He has not reoffended or had any problems with law enforcement since his incarceration. He was a good Soldier and his military service was honorable. A favorable decision would restore some honor to his name and prove that a person’s entire life is not defined by one mistake. 3. Following prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 7 March 1978. He reenlisted in the Regular Army on 27 September 1979. He was awarded the Army Good Conduct Medal on or about 18 October 1980 and was promoted to the rank/grade of SP5/E-5 effective 6 June 1981. 4. Before a general court-martial on or about 24 November 1981, at Schweinfurt, Federal Republic of Germany, the applicant was found guilty of rape, on or about 28 July 1981. The court sentenced him to reduction to the rank/grade of private/E-1, forfeiture of all pay and allowances, confinement at hard labor for five years, and to be dishonorably discharged from the service. The sentence was approved on 26 February 1982 and the record of trial was forwarded for appellate review. 5. The U.S. Army Court of Military Review, on 21 June 1983, affirmed the findings of guilt and the sentence. 6. General Court-Martial Order Number 155, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas on 28 April 1986, noted that the applicant's sentence had been affirmed and ordered the dishonorable discharge duly executed. 7. The applicant was discharged on 6 June 1986, in the rank/grade of private/E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, as a result of court-martial, with his service was characterized as dishonorable. 8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 9. The applicant provides excerpts from his medical records that document injuries he sustained during his military service, and numerous character reference letters that attest to his trustworthiness, professionalism, and dedication to his family and the community. 10. The Board should consider the entirety of the applicant's record, his statement, and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. 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 nature of the misconduct, the preferring of court-martial charges, the outcome of the court-martial and the applicant’s discharge. The Board does not have the authority to revoke the court-martial and found insufficient evidence to restore his rank, alter the sentence or remove evidence of the conviction. The Board found insufficient evidence of in-service mitigation for the serious misconduct. 2. The Board considered the letters of reference attesting to the applicant’s post- service conduct provided in support of a clemency determination. Based on the preponderance of evidence, and by split vote, the Board majority found sufficient evidence to grant partial relief. The dissenting member found the evidence presented, insufficient to warrant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XXX : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XXX 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 amending the DD214 for the period ending 6 June 1986 to show the character of service as Under Honorable Conditions (General). 2. The Board also recommends that all Department of the Army records of the individual concerned be corrected as indicated in the Administrative Notes that follow. 3. 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 relief in excess of that noted 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 6 June 1986, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780307 UNTIL 790926 REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. c. Chapter 3 provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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) AR20200008208 5 ARMY BOARD FOR CORRECTION OF MIITARY RECORDS Record of Proceedings 1