ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210011820 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 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), dated 1 April 2021 . DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 1 April 2021 . DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending August 1993 . Order 258-165, issued by the Arkansas Army National Guard (ARARNG) on 14 September 2004 . General Court-Martial Order (GCMO) Number 11, issued by Headquarters, Department of the Army, Washington, DC on 12 April 2006 . Orders 136-0152, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 16 May 2006 . DD Form 214, for the period ending 26 April 2006 . a form letter commemorating presentation of the U.S. Flag and retirement tokens by the Soldier for Life program . Application for Retired Pay Benefits (8 pages), dated 29 December 2020 . letter from the Gray Area Retirements Branch of U.S. Army Human Resources Command (HRC), dated 18 February 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his discharge was inequitable because it was based on one isolated incident in over 22 years of service with no other adverse action. He contends it is illegal for a Federal Judge to accept a State retirement. 3. The applicant was a Reserve Officers’ Training Corps (ROTC) cadet while attending Henderson State University. Upon graduation, he was appointed as a second lieutenant in the United States Army Reserve (USAR) on 22 December 1982. He was transferred to the ARARNG effective 8 September 1993. He was promoted through the commissioned officer ranks, culminating with his promotion to Lieutenant Colonel/O-5 on 29 August 2000. He served in a variety of assignments with increasing responsibility, to include serving as a Battalion Commander. 4. The applicant was ordered to active duty as a member of his unit for the purpose of deploying to Iraq in support of Operation Iraqi Freedom, for a period not to exceed 703 days commencing 12 October 2003. 5. A DD Form 2704 (Victim/Witness Certification and Election Concerning Inmate Status) and Department of the Army Result of Trial document show the applicant was convicted by a general court-martial convened at Camp Victory North, Iraq on 21 May 2004, of violating numerous Specifications of five Articles of the Uniform Code of Military Justice (UCMJ). He was sentenced to be confined for six years and to be dismissed from the Army. He pled guilty and was found guilty of violating: . two Specifications of Article 80, UCMJ – Attempting to violate a lawful general order . one Specification of Article 90, UCMJ – Disobeying a superior commissioned officer . three Specifications of Article 92, UCMJ – Violating a lawful general order or regulation . one Specification of Article 107, UCMJ – Rendering a false official statement . ten Specifications of Article 133, UCMJ – Conduct unbecoming an officer 6. The applicant was separated from the ARNG, effective 13 August 2004, and was transferred to the USAR Control Group (Reinforcement) as a result of UCMJ action. 7. A DD Form 2707 (Confinement Order) shows the applicant’s sentence of confinement and dismissal from service was adjudged on 14 August 2004. 8. Orders A-09-409013, issued by HRC on 2 September 2004, show the applicant was ordered to active duty for the purpose of confinement at the Naval Consolidated Brig located in Charleston, SC for a period of 3 years, commencing 14 August 2004. 9. General Court-Martial Order Number 6, issued by Headquarters, 1st Cavalry Division, Camp Al-Tahreer, Iraq on 21 January 2005, shows the pleas and findings for the Charges and Specifications for which the applicant was arraigned. 10. General Court-Martial Order Number 11, Issued by Headquarters, Department of the Army, Washington, DC on 12 April 2006, shows the offenses of which the applicant was convicted as follows: Charge I, Violation of Article 80, UCMJ: Two Specifications of attempting to violate a general regulation. At or near Fort Hood, TX, on or about 20 December 2003, attempted to violate a lawful general regulation, Army Regulation (AR) 600-20 (Army Command Policy), paragraph 4-14c (2), by inviting Private First Class W. to his room and trying to convince her to engage in an ongoing sexual relationship with him; at Camp Cooke, Iraq, between 31 March and 15 May 2004, attempted to violate a lawful general regulation, AR 600-20, paragraph 4-14c (2), by repeatedly attempting to enter into an intimate and sexual relationship with Sergeant H. Pleas: Guilty. Findings: Guilty. Charge II, Violation of Article 90, UCMJ: One specification of willfully disobeying a superior commissioned officer. At Camp Cooke, Iraq, on or about 17 May 2004, having received a lawful command from Brigadier General (BG) C., his superior commissioned officer, then known by LTC [The applicant] to be his superior commissioned officer, not to go to his (LTC [The applicant's]) trailer until authorized to do so by BG C. or Col R. or words to that effect, willfully disobeyed the same. Plea: Guilty. Finding: Guilty. Charge III, Violation of Article 92 UCMJ: Two specifications of violating a lawful general regulation and one specification of violating a lawful general order. At Fort Hood, Texas, on or about 30 November 2003 violated a lawful general regulation, AR 600-20, para.4-14c (2), by wrongfully engaging in a sexual relationship with PFC W. W.; on or between 18 April to 7 May 2004 violated a lawful general regulation, Army Regulation 600-20, para 4-14c(2), by wrongfully engaging in a sexual relationship with SGT E.S.; and on or about 17 May 2004 violated a lawful general order, Central Command (CENTCOM) General Order No lA, dated 19 December 2000 by wrongfully possessing pornographic materials including four Playboy magazines and one Penthouse Forum magazine. Pleas: Guilty. Findings: Guilty. Charge IV, Violation of Article 107, UCMJ: One specification of making a false official statement. At or near Camp Cooke, Iraq, on or about 17 May 2004, with intent to deceive, made to Major B. an official statement, "the Commanding General allowed me to retrieve some items from my room," or words to that effect which statement was totally false and was then known by LTC [The applicant] to be so false. Plea: Guilty. Finding: Guilty. Charge V, Violation of Article 133, UCMJ: Ten specifications of conduct unbecoming an officer and gentleman. On 30 November 2003 and 3 January 2004, at Killeen, Texas, and Harker Heights, TX, respectively, purchased for and provided alcoholic beverages to PFC W., who was under 21 years of age; on 30 November 2003 at Fort Hood, TX, had sexual intercourse with PFC W., a woman not his wife; on 30 November 2003 and again on 19 December 2003 at Fort Hood attempted to impede an investigation by telling PFC W.W. not to tell anyone about their sexual encounters; on 19 December 2003 at Fort Hood wrongfully and dishonorably suggested to PFC W.W. that she should maintain their sexual relationship; on 4 January 2004 at Fort Hood and again on 1 March 2004 at Fort Polk, LA, while married to another woman, wrongfully and dishonorably suggested to Second Lieutenant T.S. that they engage in sexual relations; on 15 February 2004 at Fort Polk, wrongfully and dishonorably suggested to SGT D. that she should have sex with him; on 20 April 2004 at Camp Cooke, Iraq, wrongfully and dishonorably used SGT R. to tell SGT S. that she had an emergency message [when no such message existed], and that SGT S. should pick up the message at a certain “message center " trailer [which was in reality LTC [The applicant's room] for the purpose of enticing SGT S. to his room for a sexual encounter. Pleas: Findings: Guilty. Sentence: Sentence was adjudged on 14 August 2004: To be confined for 6 years and to be dismissed from the Army. Action of the Convening Authority on 21 January 2005: By command of Major General C_______: Only so much of the sentence as provides for confinement for ninety (90) days and to be dismissed from the Army is approved and, except for the part of the sentence extending to a dismissal from the Army, will be executed. Appellate Actions: On 30 September 2005, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. The conviction became final on 22 December 2005 when the United States Court of Appeals for the Armed Forces denied the appellant’s petition for grant of review. 11. On 26 April 2006, the applicant was dismissed under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, due to a court-martial with a UOTHC characterization of service. 12. The applicant submitted an application for retired pay benefits on 29 December 2020. A letter from the Gray Area Retirements Branch of HRC, dated 18 February 2021, shows the applicant’s request was denied due to the fact that to be eligible for retired pay under Title 10, United States Code, Sections 12731-12737 at age 60, a Reserve Component Soldier must not have been separated pursuant to the sentence of a court-martial with a dismissal from the United States Army. 13. Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel. a. Paragraph 5-17 states an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review. A Reserve Component officer may be released from active duty pending completion of the appellate review or placed on excess leave in lieu of release from active duty. b. Paragraph 1-22a provides that an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty. c. Paragraph 1-22b provides that an officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 14. The 2005 Edition of the Manual for Courts-Martial provides that the maximum authorized punishment for indecent acts with another is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 15. 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. 16. The Board should consider the applicant's statement, provided evidence, and the entirety of his record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided insufficient evidence of post-service achievements or letters of support to weigh 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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. X CHAIRPERSON 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 ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. Additionally, applicants may be represented by counsel at their own expense. 2. 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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//