ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20170003130 APPLICANT REQUESTS: reconsideration of his earlier request for upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * Six Character Reference Letters * Letter to Hiring Official from Applicant FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicants case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999028588 on 13 January 2000. 2. The applicant states that aside from the mistake he made at 23 years old, he has not before or after the incident, ever been in any kind of trouble. After his release, he went to college, got married and added 4 children to his family and has been working ever since. Today he is proud of all of his accomplishments and the fact that his debt to society has been paid for the past 20 years. 3. The applicant provides: a. Reference letter from X____, dated 22 August 2016, which states it is his pleasure to write this letter of recommendation for the applicant to serve as a substitute teacher. He has known the applicant for three years. In those three years, he has shown him that he is an individual with a lot of knowledge and excellent work ethic. With his academic knowledge and military background, he has a lot to offer the youth that he will serve in your school system. This is evident in the fact that the applicant has two children that matriculated through the system. These young people are now pursuing a. their life’s dreams. He would definitely be an asset in helping other young people pursue their goals and dreams. b. Reference letter from X___, dated 6 September 2016, which states she writes this letter of reference in support of the applicant. A former schoolmate of her brother’s, the applicant has been a dear family friend for over 20 years. As a partner in business litigation practice, she encounters people from all walks of life who seek advice regarding various conflicts and disputes. She understands that when her clients ask for her guidance and counsel, she has an obligation to be honest and forthright in evaluating their circumstances. As a result, her career has necessarily honed her ability to evaluate other people and their character. It is for these reasons that she can say without hesitation that the applicant is a man of great character and conviction. She knows him to be intelligent, honest, kind, and dependable. He is an upbeat and good- spirited person, and people enjoy spending time with him. She thinks these personality traits will serve him well in any career and that he will be of great benefit to any employer. c. Reference letter from X___, dated 7 September 2016, which states the applicant has expressed to him that he has applied for a position in the public school system. He has had the pleasure of knowing the applicant for the past 30 years. During that time he has been a devoted family man and takes pride in raising his children. The applicant takes a special interest in the youth and will be an excellent choice to be in your schools. The applicant would be a good role model to the young men in your schools. The applicant is active in the church and a member of Phi Beta Sigma fraternity. Those foundations contribute to his commitment to serving his community. He gives the applicant his highest recommendation. d. Reference letter from X___, dated 13 September 2016, which states he writes this letter of reference in support of the applicant. As a former production manager, the applicant has been a dedicated partner for over 4 years. As a manager, his career has helped him become a good evaluator of other people and their character. It is for these reasons that he can say without hesitation that the applicant is a man of great character and conviction. He knows him to be intelligent, honest, kind, and dependable. He is an upbeat and good-spirited person, and people enjoy spending time with him. He thinks these personality traits will serve him well in any career and that he will be of a great benefit to any employer. e. Reference letter from X___, dated 13 September 2016, which states it is with great pleasure that she write this letter of recommendation on behalf of the applicant. She has known him for over ten years. The applicant has always displayed a high degree of integrity, responsibility, and ambition. He is definitely a leader rather than a follower. The applicant has good judgement and a mature outlook that ensures a logical and practical approach to his endeavors. She knows the applicant to be dependable, responsible, honest and courteous and will be an asset to any organization. She confidently recommends him for any position or undertaking that he chooses to pursue. a. f. Reference letter from X___, dated 19 September 2016, which states please accept this character reference/recommendation for the applicant as an honest professional and personal account of his professionalism, community involvement, and work ethic. He and the applicant have worked together on numerous social action programs and initiatives sponsored by Phi Beta Sigma Fraternity, Incorporated. During this time, he has always been amazed at the applicants’ level of enthusiasm, compassion and ability to serve others. He has personally witnessed him accomplish assigned tasks with a level of excellence. Through many encounters, he has noticed the camaraderie and wonderful rapport that he has developed with many in his professional and personal arena. The applicants’ ability to connect with community stakeholders are impeccable. He looks forward to seeing the applicant thrive in any organization using his varied talents. To this end, it is with great esteem and privilege that he is able to comfortably write the applicant a letter of reference. g. Letter to Hiring Official from applicant, states he wants to first and foremost thank the agency for the opportunity of allowing him to go into detail about his past situation. On 1 July 1996, while serving in the United States Army, at the age of 23, he made a bad decision that resulted in consequences that were much deserved. After earning the opportunity to work in the mailroom, he betrayed the trust given to him by taking mail that did not belong to him. He cooperated 100% with the legal process and accepted the punishment that the court ordered upon him. He served a total of nine months which gave him the time to reflect on how he disappointed himself, along with family and friends. He had never been in trouble with the law. He made a mistake but that was his only one that was made. He has since made his friends and family proud by going and earning his Associates of Science Degree in Funeral Science/Mortuary Science, gotten married and had children and became a member of the Phi Beta Sigma Incorporated. If hired he knows that he would definitely be a great asset to the public school system. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 4 January 1995. b. On 10 December 1996, he was convicted by a general court martial of 12 counts of larceny, 2 counts of larceny and opening of certain mail matter, and one count of failure to go to appointed place of duty. The court sentenced him to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 363 days, and a bad- conduct discharge. c. General Court-Martial Order Number 4, dated 20 February 1997, approved the sentence and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. a. d. On 6 June 1997 the appellate rendered a decision that states on consideration of the entire record, including consideration of the issue personally specified by the appellant, they held the findings of guilty and the sentence was approved by the convening authority correct in law and fact. e. General Court-Martial Order 197 dated 7 November 1997, affirmed the sentence and ordered the bad conduct discharge be executed. f. The applicant was discharged on 14 January 1998. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of his general court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge. He completed 2 years, 2 months, and 28 days of creditable active military service with lost time from 10 December 1996 to 18 September 1997. His DD Form 214 also shows he was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M16) 4. By regulation (AR 635-200), 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. 5. 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 large amount of money involved in the applications misconduct, the Board concluded that he characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :BW :BF :MR 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. 6/17/2019 X CHAIRPERSON Signed by: 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 635-200 provides for the separation of enlisted personnel: a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. 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 provides that 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 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member 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. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. a. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation and job history * Availability of other remedies * Whether misconduct may have been youthful indiscretion * Character references