ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160014004 APPLICANT REQUESTS: upgrade of his dishonorable discharge to general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Five DD Forms 214 (Certificate of Release or Discharge from Active Duty), respectively ending 30 November 2001, 4 February 2005, 27 November 2005, 12 June 2008, and 3 May 2016 FACTS: 1. The applicant states he was discharged from the Army for a violation of Article 134 (General Article), Uniform Code of Military Justice (UCMJ). He acknowledges he made a mistake that he deeply regrets, but that at the end of the day, he is responsible for his own actions. a. He was deployed to Afghanistan in 2013; this was his fourth deployment. He was having marital problems at the time. He went online to an adult chatroom where he thought he was talking to an adult; some of the conversation was sexual in nature and involved role-playing. The person with whom he had been role-playing turned out to be a police officer and he was charged with "attempted sexual solicitation of a minor." b. He returned from Afghanistan to Fort Riley, KS to face charges. He pleaded innocent because he thought he was role-playing with an adult in an adult chatroom. The court nonetheless him found guilty. c. He still maintains his innocence. He served his country honorably for over 10 years and deployed to both Iraq and Afghanistan. The Merriam-Webster dictionary defines honor as, "one's word given as a guarantee of performance." He asserts there was never an issue with his work ethic. He asks the Board not to define his entire military career as dishonorable due to one incident. 2. The applicant enlisted in the Regular Army on 13 June 2008. 3. He was deployed to Afghanistan from 4 September to 23 December 2012. 4. On 15 January 2014, a general court-martial convicted him of two violations of Article 80 (Attempts), UCMJ, for attempting to commit a lewd act with someone he believed to be under 16 years of age during his deployment to Afghanistan. The court sentenced him to confinement for 3 years, forfeiture of all pay and allowances, reduction to private (PV1)/E-1, and a dishonorable discharge. The general court-martial convening authority approved the sentence and, with the exception of the dishonorable discharge, ordered the sentence's execution. 5. On 23 October 2015, the U.S. Army Court of Criminal Appeals summarily affirmed the findings and sentence in the applicant's case. On 5 February 2016, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for review. 6. On 24 March 2016, a general court-martial order directed the execution of his dishonorable discharge. 7. The applicant was dishonorably discharged on 3 May 2016. His DD Form 214 shows he completed 5 years, 7 months, and 13 days of net active service, and 2 years, 10 months, and 12 days of prior active service (totaling 8 years, 5 months, and 25 days). He was awarded or authorized: * Afghanistan Campaign Medal with two bronze service stars * Army Commendation Medal (2nd Award) * Army Achievement Medal * Meritorious Unit Commendation * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Iraq Campaign Medal with Arrowhead and two bronze service stars * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (5th Award) * Armed Forces Expeditionary Medal with Fleet Marine Force Combat Operations Insignia * Armed Forces Reserve Medal with "M" Device (2nd Award) * U.S. Air Force Training Ribbon * Combat Action Badge 8. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the applicant’s statement, the Board determined relief was not warrant. Because of the severity of the misconduct, the Board found no injustice was present and no clemency was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. SIGNATURE: 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the 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 a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other than Honorable Conditions). This character of service was an administrative separation and could be issued for misconduct when separation was based on one or more acts that constituted a significant departure from the conduct expected of Army Soldiers. This included acts or omissions that seriously endangered the health and safety of others. d. Section III (Dishonorable and Bad Conduct Discharge), paragraph 3-10 (Dishonorable Discharge) stated a Soldier was to be given a dishonorable discharge pursuant only to an approved sentence by a general court-martial; after completion of the appellate review and after the affirmed sentence had been ordered duly executed. 2. 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 (to include that provided by an applicant), 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. ABCMR Record of Proceedings (cont) AR20160014004 4 1