ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20160017827 APPLICANT REQUESTS: * An upgrade of his dishonorable discharge * Reinstate rank and all monies APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Military Court Records versus facts document * United States (U.S.) Court of Military Appeals versus Applicant * Affidavit with eight exhibits FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 that in effect he was misrepresented by his lawyer and did not get a fair trial. The medical evidence that was provided was not used to support his innocence. He requested that all charges be dismissed and cleared through the Department of Justice (DOJ) criminal record system. He wants his rank to be reinstated and his dishonorable discharge upgraded to honorable. 3. The applicant provided: a. A self-authored statement that the Board take the honor to dismiss and clear all charges that have rested upon he and his family shoulders for thirty-three years. He requests the charges be cleared through DOJ criminal record system and that all ranks and monies reinstated respectively. He received the rank of E-5 within 24 months of his first duty assignment according to his DD Form 214 (Certificate of Release or Discharge from Active Duty) from 1979-1981, to keep in mind what he would have done over the life span of twenty years. b. The military court records versus facts document, exhibit one, which expounds on his recollection of incidents occurring in 1983 surrounding his court martial. c. The U.S. Court of Military Appeals, docket number 51,887/AR, the U.S. versus applicant with handwritten notes presumably made by the applicant which was notarized on 11 October 2016. d. A notarized affidavit dated 13 October 2016 by the state of Alabama that includes the trial records and letters concerning the incident: 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 22 May 1979. b. On 7 July 1983, he was convicted by a general court-martial of one specification of rape, one specification of sodomy, one specification of striking a Soldier with an open hand and a closed fist on 29 January 1983, one specification of violence against a senior commissioned office, and one specification of disobeying a senior commissioned officer on 13 June 1983. The court sentenced him to forfeiture of all pay and allowance, confinement at hard labor for a period of 15 years and to be discharged from the service with a dishonorable discharge. c. On 26 August 1993, the convening authority approved the sentence and except for the dishonorable discharge, ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. d. On 18 January 1985, the United States Court of Military Appeals, affirmed the findings of guilty and the sentence. e. General Court Martial Order 237, dated 22 August 1985 shows the sentence had been affirmed and ordered executed. f. The applicant was discharged on 20 September 1985. His DD Form 214 shows discharged under the provision of AR 635-200, (Personnel Separation), paragraph 3-10, as a result of court martial, and his service characterization is dishonorable. He completed 1 year, 6 months, and 27 days and 2 years 6 months, and 3 days prior service, with lost time from 22 June 1983 to 20 September 1985. 5. By Army regulation 635-200, members 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. 6. Army Regulation 600-8-19, Enlisted Promotions and Reductions, operation of law states that an enlisted Soldier, serving in a grade above E-1, with an approved court–martial sentence including a bad conduct or dishonorable discharge, confinement, or hard labor without confinement is reduced on the date the convening authority approves the sentence. 7. The court sentenced him to reduction to the lowest enlisted grade. By law, court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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. 8. 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 DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. Additionally, for the same reason, the Board found the reduction in rank and loss of include appropriate for the offenses committed. For that reason, the Board recommended denying the applicant’s request for relief. 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. 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. 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 Army Board for Correction of Military Records (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. 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 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. AR 635-200, Personnel Separations, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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. Paragraph 3-11 states that a Soldier will 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. 4. AR 600-8-19, Enlisted Promotions and Reduction, prescribes provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. a. Paragraph 6-1c states a court–martial sentence of Soldiers which, as approved by the convening authority, includes a punitive discharge, confinement, or hard labor without confinement, carries a reduction to the lowest enlisted pay grade. Reduction will be effective on date of approval by the convening authority. b. Paragraph 6-1d states a Soldier, whose sentence to a punitive discharge, confinement, or hard labor without confinement is approved, may be probationally retained in the grade held at time of sentencing or in any intermediate grade. c. Paragraph 6-1e states when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, they will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions, or when directed by higher authority, direct the Soldier to be reduced to private, E–1. If discharge is approved under other than honorable conditions but is suspended the Soldier will not be reduced under this provision. 5. 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 based on 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. ABCMR Record of Proceedings (cont) AR20160017827 0 4 1