IN THE CASE OF: BOARD DATE: 16 June 2021 DOCKET NUMBER: AR20210007607 APPLICANT REQUESTS: * In effect, reconsideration of his earlier request to upgrade his bad conduct discharge * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060013355 on 26 April 2007. 2. The applicant states, in effect, the Board should correct his discharge because he served honorably from 6 November 1984 through 6 November 1988; as such, he should have a character of service that accurately reflects his service for that period. 3. The applicant's service records show: a. On 6 November 1984, the applicant enlisted into the Regular Army for 4 years; he was 18 years old. Upon completion of initial entry training, and the award of military occupational specialty 91D (Operating Room Specialist), orders assigned the applicant to Fort Carson, CO, and he arrived at his unit on 2 July 1985. Effective 6 November 1986, the applicant's Fort Carson leadership promoted him to specialist four (SP4)/E-4. b. On 20 January 1988, a civilian court convicted the applicant of simple assault, committed against his spouse, and sentenced him to 12-months' probation and a $65 fine. c. On 23 January 1989, and consistent with the applicant's pleas, a general court- martial convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) The applicant had been charged with 46 specifications of making and uttering checks (amounts ranging from $25 to over $200), with the intent to defraud and without having sufficient funds, and of nine specifications of conspiracy to commit a UCMJ offense (i.e. making and uttering a check without sufficient funds). The court found him guilty of fraudulently making and uttering 19 checks, and the court determined the applicant was guilty of all nine specifications of conspiracy. (2) The court sentenced the applicant to a dishonorable discharge, forfeiture of all pay and allowances, confinement for 2 years, and reduction to private (PV1)/E-1; the applicant immediately entered confinement. (3) On 3 March 1989, the general court-martial convening authority approved only so much of the sentence as allowed for a bad conduct discharge, confinement for 2 years (with 12 months suspended), forfeiture of all pay and allowances, and reduction to PV1; the convening authority ordered the execution of all but the bad conduct discharge, pending appellate review. d. On 5 May 1989, the U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's case. On 5 September 1989, a general court-martial order announced the completion of the applicant's appellate review process and ordered the execution of the applicant's bad conduct discharge. e. On 13 October 1989, orders directed the applicant's bad conduct discharge and stated the applicant would otherwise remain confined until released by proper authority. The applicant's DD Form 214 shows he completed 4 years, 2 months, and 15 days of his 4-year enlistment contract, with no reenlistments, but with lost time from 19899123 to 19891012. The DD Form 214 lists the following awards: Army Service Ribbon, Army Good Conduct Medal (1st Award), and two marksmanship qualification badges. f. On 9 September 2006, the applicant petitioned the ABCMR, requesting an upgraded character of service. (1) The applicant argued he had had 3 years and 7 months of stellar service and 1 year of shameful mistakes, which were committed in his youth. Following his discharge, he was a productive and proud American citizen; he was now looking for closure. (2) On 26 April 2007, the Board voted to deny the applicant's request. The Board noted the applicant had not offered evidence of an error, injustice, or inequity, and, given the gravity of his offenses, trial by court-martial was warranted. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant argues the Board should correct his discharge so that it more accurately reflects his honorable service, from 6 November 1984 through 6 November 1988. a. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. b. Army Regulation (AR) 635-8 (Separation Processing and Documents), currently in effect, states, for Soldiers who have previously reenlisted without being issued a DD Form 214, and who are subsequently separated with less than an honorable character of service, their DD Form 214 will show the following comment in item 18: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." c. 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ABCMR 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. The Board found that the regulation does not permit the applicant under his circumstances to have “"continuous honorable service" comment added to his DD Form 214 since the applicant never reenlisted, although he received an Army Good Conduct Medal during his 3rd year of his 4-year enlistment. The Board agreed based on regulatory guidance the applicant would have had to reenlist after serving honorably during his first enlistment term, but not receive a DD 214 for that first period of service. The Board found insufficient evidence of in- service mitigating factors for the misconduct to weigh a clemency determination. The applicant no provided post-service character letters of support to weigh a clemency determination. The Board found insufficient evidence of in-service mitigating factors for the misconduct. Based on a preponderance of evidence, the Board agreed there is insufficient evidence to amend the previous Board’s decision. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XXX XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20060013355 on 26 April 2007. 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. Title 10, USC, section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish Soldiers an honorable discharge Soldiers when subsequent honest and faithful service over a greater period outweighed any disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities issued general discharges to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) stated a Soldier could receive a bad conduct discharge pursuant only to the approved sentence of a general or special court-martial, and, following the completion of an appellate review, such affirmed sentence had been ordered duly executed. 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. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007607 5 ARMY BOARD FOR CORRECTION OF MILITAR RECORDS RECORD OF PROCEEDINGS 1