IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210012073 APPLICANT REQUESTS: * Reconsideration of his previous request to upgrade his bad conduct discharge * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Seven letters of support 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 AR20170003671, on 27 June 2019. 2. The applicant states, in effect, after an officer-related shooting at a military installation few years ago, his local authority noticed an apparent filing error; as a result, they took away his right to carry a firearm. At the time, all branches of the military were revising their records, with regard to allowing military members to carry firearms; before this, the applicant had been a registered, fully armed officer for such employers as the Department of Motor Vehicles (DMV). The applicant declares he is sorry for what he did, and he has "paid (his) time." Now, 30 years later, he is a devout believer in his God and a devoted husband, father, grandfather, and American citizen. The applicant provides additional information and arguments in a self-authored statement. a. To begin with, the applicant states he would be remiss if he did not acknowledge he was at fault for the charges that ultimately led to his bad conduct discharge; he declares he is full of remorse, and he regrets his actions. He was in a bad place, those more than 30 years ago, and he recognizes what he did was wrong; nonetheless, a review of his military record should show, prior to his misconduct, the level of his career was "nothing shy of excellence," and he was well on track for promotion to staff sergeant. The applicant further notes he has always advocated for the U.S. Army. b. The applicant states the person he was 30-plus years ago was in the process of becoming a great young man, person, and leader, but he had a moment of misguided judgment, and military authority judged him in a manner that fit the times. Today, he is a devout believer, father of four, and grandfather of three; in addition, he is "a devoted husband, a treasured friend, a leader in (his) community, and a respected business owner." Following his separation, he went back to school and obtained a number of certifications, to include EMT (emergency medical technician), Certified Firefighter, Department Fire Chief, and Armed DMV officer; he also earned an Associate's Degree in Applied Sciences. He and his wife now own a private Adult Care Residence, where they offer full care to live-in seniors with medical needs. c. The applicant maintains he is a "decent, respectable, contributing member of humanity," and he is thankful for the start the U.S. Army gave him; after his discharge, he strove to better himself, and he contends he accomplishes more each day with the support of his wife and the leadership of his Savior. He looks forward to continuing his quest to correct, "all past issues and convictions of a young man (who) had (1) momentary lapse of judgment" over three decades ago. d. In support of his request (and per the Board's recommendation in the previous consideration of his case), the applicant submits seven letters of support from friends and colleagues, all of whom describe him as personable, compassionate, and hardworking, and someone with strong communication skills who has grown into a respected member of his community. The applicant is dedicated to his faith and his family, and he never hesitates to help others. 3. The applicant's service records show: a. On 15 September 1983, after obtaining his parent's permission, the applicant enlisted into the Regular Army for 2 years; he was 17 years old. Following initial entry training and the award of military occupational specialty (MOS) (15D (Lance Crewmember), orders assigned the applicant to Fort Sill, OK; (the applicant's available service record does not reflect the date of his arrival at Fort Sill). In or around May 1984, the applicant's primary MOS changed to 31K (Combat Signaler). b. During or shortly after May 1985, the applicant's battalion commander awarded the applicant a Certificate of Achievement, based on the applicant's selection as the Battalion Soldier of the Month for May 1985. On 25 July 1985, permanent orders (PO) awarded him the Driver and Mechanic Badge with Driver-W Component Bar for satisfactorily performing driver duties during the period 1 February 1984 through 1 July 1985. On 26 August 1985, PO awarded the applicant the Army Good Conduct Medal (1st Award), for the period 15 September 1983 through 14 September 1985. Effective 1 September 1985, the applicant's chain of command promoted him to specialist four (SP4)/E-4. On 4 September 1985, PO awarded him an Army Achievement Medal for meritorious service from 20 January 1984 to 13 September 1985. c. On 14 September 1985, orders honorably released the applicant from active duty and transferred to a U.S. Army Reserve (USAR) Troop Program Unit (TPU). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years of his 2-year enlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar * Army Good Conduct Medal (1st Award) * Driver and Mechanic Badge with Driver-W Component Bar * Army Achievement Medal (1st Award) d. On 9 December 1986, while serving in his USAR TPU, a U.S. Army Reserve Command Commanding General awarded the applicant a Certificate of Achievement for his outstanding service as a switchboard operator during a major training exercise. Effective 9 December 1986, the applicant's TPU leadership promoted him to sergeant (SGT)/E-5. e. On 19 February 1987, the applicant requested a Reserve Component release so he could enlist into the Regular Army. Following the approval of his request, and effective 25 February 1987, orders honorably discharged the applicant from the Ready Reserve. On 26 February 1987, the applicant enlisted in the USAR Delayed Entry Program (DEP); on 18 March 1987, the USAR DEP discharged the applicant and he reenlisted into the Regular Army for 3 years. At the time of his reenlistment, the applicant held the rank/grade of SP4. f. Orders subsequently assigned the applicant to Germany, and he arrived at his unit, on 8 April 1987. On 6 July 1987, the applicant extended his enlistment by one month in order to comply with regulatory requirements for a "With Dependents" overseas tour. g. On 6 October 1988, PO awarded the applicant the Army Achievement Medal (3rd Award) for meritorious achievement. Effective 1 August 1989, the applicant's overseas leadership promoted him to SGT. On 28 August 1989, the applicant immediately reenlisted for 3 years. h. On or about 30 March 1990, the applicant completed his tour in Germany, and orders reassigned him to Fort Drum, NY: he arrived at his Fort Drum unit, on 12 June 1990. i. On 10 January 1991, and consistent with the applicant's plea, a general court- martial convicted the applicant of violating Article 121 (Larceny) by stealing $1,700 in U.S. currency and a $100 personal check. The court sentenced the applicant to 3-months' confinement, forfeiture of $400 per month for 3 months, reduction to private (PV1)/E-1, and a bad conduct discharge. j. On 20 February 1991, the general court-martial convening authority approved the sentence and, except for the bad conduct discharge, ordered its execution. On 30 March 1991, a DD Form 397 (Prisoner's Release Order) released the applicant from confinement after he had completed that portion of his sentence; military authority placed the applicant on excess leave. k. On 3 December 1991, a general court-martial order announced the completion of the applicant's appellate review and directed the execution of the applicant's bad conduct discharge. l. On 13 January 1992, orders discharged the applicant accordingly; his DD Form 214 shows he was discharged in accordance with chapter 3 of Army Regulation 635- 200 (Personnel Separations) with a bad conduct discharge. He completed 4 years, 9 months, and 26 days of net active duty service, of which he served 2 years, 4 months, and 17 days on his last reenlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) reflected the following: * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (1st Award) * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar * Driver and Mechanic Badge with Driver-W Component Bar m. On 13 March 2017, the applicant petitioned the ABCMR, requesting an upgraded character of service. (1) The applicant stated he had never attempted to seek an upgrade before. At the time he committed his misconduct, he was a young kid who lacked the maturity to understand how his decisions would affect his life. The applicant had since grown up and become a completely different person with a new set of values and insights gained from life lessons. At 51 years of age, he planned to continue his education, by earning a Bachelor's Degree, and he wanted to purchase a home for his family; he wished to have access to military benefits to help him in his quest. The applicant pointed out he had served his country and was a vital part of several mission-oriented tasks; he also continued to advocate for the youth of his community to join the Army. (2) After reviewing the application and all evidence, the Board determined the applicant's case did not warrant relief. The Board noted the applicant had failed to supply either character witness statements or evidence of his post-service achievements. Given the seriousness of the crime he had committed, the Board agreed the applicant's character of service was appropriate. 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 requests the Board upgrade his character of service. He acknowledges his misconduct, and, in support of his request, he provides character witness statements and a description of his post-service accomplishments. a. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the ABCMR is not empowered to set aside a conviction. Rather, the law only authorizes the Board 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. b. In reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was partially 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. Based upon a preponderance of evidence, his overall service, time passed since his discharge, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency, to a general discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the correction addressed in Administrative Note(s) below,The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20170003671, dated 27 June 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 13 January 1992 showing his character of service as General, Under Honorable Conditions. 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): 1. AR 635-8 (Separation Processing and Documents), currently in effect, states: a. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “Honorable,” DD Form 214 preparers are to enter "CONTINUOUS HONORABLE SERVICE FROM" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, reflect the specific periods of reenlistment as prescribed above. b. The applicant's DD Form 214, ending 13 January 1992, does not reflect his continuous honorable service, completed prior to his immediate reenlistment, on 28 August 1989. 3. As a result, amend the applicant's DD Form 214 ending 13 January 1992, by adding to item 18 (Remarks) the following comment: "CONTINUOUS HONORABLE SERVICE FROM 19870318 TO 19890827." REFERENCES: 1. Title 10, USC, Section 1552(b), states, regarding courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, that action to correct any military record of a Secretary's Department may only extend 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 (Honorable Discharge). 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 an honorable discharge when subsequent honest and faithful service over a greater period outweighed 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 (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier received a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate authority must have completed the review process, and the affirmed sentence 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) AR20210012073 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1