ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20170002673 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement 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 (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 he would like to get his discharge upgraded to an honorable, because he did his job and never complained. He always did his job the way he was told to do it. In the case against him, there was no evidence. It was based on hearsay. He was told by his attorney it was to satisfy the civilian side. The lady that accused him, apologized and wrote a letter, but was told if she changed her story she would be prosecuted. 3. The applicant provides: a. Self-authored statement, which states he was court-martialed in 2003, because of a woman said she saw his penis and it messed her up for life. She wanted 2 million dollars. She never got the money, but he went to the brig for 6 months to satisfy the civilian side, which is what he was told by his JAG attorney. b. He has since left it behind him, but feels he honestly got railroaded. He is now a corrections officer at a prison and a part of SORT (Special Operations Response Team). Promotions are hard to get, because of his bad conduct discharge. He is requesting an upgrade, so he can live life more comfortably and satisfying. The lady involved apologized for what she had done. She said she was sorry, but she could not go to prison. He wishes there was some way to prove he was innocence. All he wants now is to change his discharge, so he can excel in his job as a correction officer. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 March 1996. b. He served in Germany from 27 July 1996 to 27 August 1997. c. He was honorably discharged from active duty on 22 September 1997. d. He enlisted in the U.S. Army Reserve on 19 September 1998. e. He was convicted by general court-martial on 12 June 2003 for: * one specification of violating general regulations by wrongfully engaging in sexual conduct with PO on or about 27 March 2001 * one specification of wrongfully committing an indecent act with PO by masturbating in front of her on or about 27 March 2001 * one specification of committing an indecent assault upon PO, a person not his wife, by fondling and kissing her breasts, on or about 27 March 2001 * one specification of indecent assault upon PO, a person not his wife, by pulling down her pants and underwear, on or about 27 March 2001 f. The court sentenced him to be reduced to the grade of Private/E-1, to forfeit all pay and allowance, to be confined for 7 months and to be discharged from the service with a Bad Conduct Discharge. g. General Court-Martial Order Number 16, dated 26 January 2007, finally affirmed the sentence. Article 71(c) having been complied with the Bad Conduct discharge will be executed. h. The applicant was discharged on 27 July 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court martial conviction with a Bad Conduct characterization of service. He completed 8 years, 7 months and 14 days of net active service and 2 years, 5 months and 1 day of prior inactive service. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the Board’s 15 year statute of limitations. 6. By regulation, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 7. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon serious criminal misconduct which led to the applicant’s separation, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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. Army Regulation (AR) 635-200 (Active Duty Enlisted - Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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 (General Discharge) 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 (Bad Conduct Discharge) states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be 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 form 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 the 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170002673 4 1