ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20160019822


APPLICANT REQUESTS:  upgrade of his bad conduct discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for Army Discharge Review Board)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* Six DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) addressing rating periods from August 2004 to May 2008
* Army Commendation Medal Certificate
* Three Permanent Orders (PO) for the first through third awards of the Army Good Conduct Medal
* Orders - Mechanic's Badge
* Two DA Forms 1059 (Service School Academic Evaluation Report) for Primary Leadership Development Course and Basic NCO Course, respectively

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  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, in effect, his discharge was unjust because the basis was one isolated incident that happened after more than 12 years and 2 months of honorable service; he had no other adverse judicial actions.  He offers a brief biography of his military career through the documents he submits; he cites his awards and military education.  He continued:

	a.  His court-martial was out of character for him; the evidence was "equivocal, resulting in (his) acquittal on several charges."  He asserts, in effect, the fact he received a bad conduct rather than the maximum punishment of a dishonorable discharge validates his assessment.  His honorable discharges from previous tours and meritorious service in a combat environment all warrant a revisit of his character of service.  

	b.  He argues he has distinguished himself with post-service accomplishments.  He contends his focus has been on establishing a new career; he graduated from college, has been attending seminary in order to do local missionary work, and, most importantly, has been raising his five children.  

3.  The applicant provides documents from his service record, which reflect the quality of his duty performance; these include six NCOERs, two academic evaluation reports, awards certificates, and POs showing awards of the Army Commendation Medal, Army Good Conduct Medal and a mechanic's badge.  

4.  The applicant's service record shows:

	a.  He enlisted in the Regular Army on 16 October 1996; he held military occupational specialty 63H (Tracked Vehicle Mechanic).  On 20 January 2000 and again on 13 March 2002, the applicant immediately reenlisted in the Regular Army.

	b.  On or about 24 February 2003, he was assigned to Fort Richardson, AK.  While assigned to Fort Richardson, orders promoted him to sergeant (SGT)/E-5, effective 1 August 2004.  He immediately reenlisted on 16 May 2005.

	c.  In or around December 2005, his received his last NCOER from his unit at Fort Richardson; it addressed the rating period July through December 2005 and his rank was listed as SGT.

	d.  In or around late March, early April 2006, he was assigned to Fort Carson, CO and deployed with his unit to Iraq on 6 October 2006.  Between 30 November 2006 and 30 June 2007, while deployed in Iraq, the applicant received two NCOERs for rating periods 1 January to 30 November 2006 and 1 December 2006 through 30 June 2007, respectively.  Both of these reports showed his rank as staff sergeant (SSG); his date of rank was 1 March 2006.

	e.  On 9 December 2008, a general court-martial convicted the applicant.

		(1)  The charges, pleas, and court findings were as follows:

* signing a false sworn statement to the U.S. Army Criminal Investigation Command (CID) claiming he went before a promotion board and made the list for promotion while at Fort Richardson;
*  pled:  "Not Guilty"; found:  "Guilty"
* making a false official statement that he had recently been promoted to SSG; pled:  "Not Guilty"; found:  "Guilty"
* stealing over $500, the property of the U.S. government between 1 March 2006 and 1 March 2008; pled:  "Not Guilty"; found:  "Guilty"
* falsely making a memorandum with order number, dated 15 February 2006, which promoted him to SSG; pled:  "Not Guilty"; found:  "Guilty"
* wrongfully wearing SSG insignia on his uniform between 1 February 2006 to 1 July 2008; pled:  "Not Guilty"; found:  "Guilty"
* wrongfully cohabitated with a women not his wife; pled:  "Not Guilty"; found:  "Not Guilty"
* wrongfully endeavored to influence and alter the testimony of a witness in his court-martial by communicating a threat that the witness would be prosecuted and would no longer receive child support; pled:  "Not Guilty"; found:  "Not Guilty"

		(2)  On 9 December 2008, the court sentenced him to confinement for 18 months, reduction to private (PV1)/E-1, and a bad conduct discharge.  Orders transferred him to Miramar Naval Brig in San Diego, CA, on or about 17 December 2008.

		(3)  On 20 April 2009, the general court-martial convening approved only so much of the sentence that provided for reduction to PV1, a bad conduct discharge, and confinement for 15 months.  With the exception of the bad conduct discharge (due to pending appellate review), the convening authority ordered the execution of the sentence. 

	f.  The applicant was released from Miramar Naval Brig on 23 November 2009.  At some point prior to 16 September 2010, the U.S. Army Court of Military Review completed its review of the applicant's case; a copy of the court's decision is not available.  On 16 September 2010, a general order announced the applicant's sentence had been affirmed and directed the execution of the applicant's bad conduct discharge.  He was discharged accordingly on 3 December 2010.

	g.  The applicant's DD Form 214 shows he completed 13 years, 2 months, and 3 days of net active creditable service, with lost time from 9 December 2008 to 23 November 2009.

		(1)  He was awarded or authorized:

* Army Commendation Medal
* Army Achievement Medal (2nd Award)
* Meritorious Unit Commendation
* Army Good Conduct Medal (4th Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with one bronze service star
* NCO Professional Development Ribbon 
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Basic Marksmanship Qualification Badge
* Driver and Mechanic Badge with Mechanic Component Bar (2nd Award)

		(2)  He completed the following military courses:

* Combat Life Savers Course
* Defense Marking for Ship
* Manager Development Course
* Primary Leadership Course

		(3)  The remarks section listed three immediate reenlistments:  19961016-20000119; 20000120-20050515; 20050516-20101203

4.  The applicant argues, in effect, one isolated incident should not overshadow his more than 12 years of otherwise honorable service; he cites his awards and military education, and describes post-service accomplishments.  A general court-martial convicted him of making false statements and generating false orders, from which he benefited to the detriment of the U.S. government.  

5.  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. 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:

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 multiple UCMJ offenses, the characterization of service was appropriate; however the prior honorable service should be annotated on the applicant’s DD Form 214 to reflect prior honorable service completed.  For that reason, the Board recommended granting partial relief to the applicant to annotate the prior honorable service completed.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 16 October 1996 to 12 March 2002.
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his bad conduct discharge.
	 
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.  Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, required the listing of all formal, in-service (i.e. full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  The entry included course title, length in weeks, and the year completed.

2.  The September 2000 revision of AR 635-5 mandated the inclusion of the following remarks:

* enter, "IMMEDIATE REENLISTMENTS THIS PERIOD" and then show the dates
* for separating Soldiers who received a less than honorable character of service:  "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)"

3.  As a result, amend the applicant's DD Form 214, ending 3 December 2010, as follows:

	a.  add:  "Basic NCO Course, 2 weeks, 2008."

	b.  delete, "IMMEDIATE REENLISTMENTS THIS PERIOD – 19961016-20000119, 20000120-20050515, 20050516-20101203," and replace with "CONTINUOUS HONORABLE SERVICE FROM 19961016 TO 20050515//IMMEDIATE REENLISTMENTS THIS PERIOD – 19961016-20000119, 20000120-20020312, 20020313-20050515, 20050516-20101203."


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  

2.  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 3-7a 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.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  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, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-11 (Bad Conduct Discharge).  A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.
The appellate review had to have been completed 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.





ABCMR Record of Proceedings (cont)	 AR20160019822


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