ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170003542 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 his discharge and conditions were inequitable because it was based on an isolated incident in nearly 20 years of combined exemplary and decorated service that included combat and combat action. It has been 8 years since his court- martial and over 4 years since his discharge. He served his military confinement honorably. He served over 8 years on a 14 year sentence due to good behavior. The conditions for a commissioned officer should be no less than a general based upon the regulations. He does not need his dismissal changed, however he would like an upgrade of his discharge to honorable. 3. A review of the applicant抯 service records shows the following: a. Having prior enlisted service, he was appointed in the Regular Army, as a warrant officer one, on 9 August 2001. He was promoted to chief warrant officer two on 9 August 2003. b. He served in Iraq from 10 December 2005 to 18 November 2006. c. On 21 January 2009, he was convicted by a general court martial of: * two specifications of failing to obey a lawful order * * four specifications of engaging in a sexual act with a minor, who had attained the age of 12 years, but had not attained the age of 16 years * two specifications of filming a minor while she undressed which acts constituted conduct unbecoming an officer and gentleman * one specification of committing an indecent act upon the body of a minor, a female under 16 years of age and not his wife * five specifications of wrongfully impeding an investigation d. He was sentenced to confinement for 15 years, forfeiture of all pay and allowances, and dismissal from the service. e. On 4 February 2010, the convening authority approved the sentence, except for that portion of the sentence pertaining to a dismissal from the service, he ordered the sentence executed. f. General Court-Martial Order Number 15, dated 9 October 2012, affirmed the sentence by the U.S. Army Court of Criminal Appeals (documentation unavailable) and ordered the sentence duly executed. g. The applicant was discharged on 23 October 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 1 month, and 17 days of active service with 5 years, 1 month, and 24 days of prior active service. It also shows in: * item 23 (Type of Separation), Dismissal or Discharge as appropriate * item 24 (Character of Service), under other than honorable conditions * item 25 (Separation Authority) Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17 * item 28 (Narrative Reason for Separation), court-martial * item 29 (Dates of Time Lost During This Period), 26 September 2008 to 23 October 2012 4. By regulation, 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. 5. By regulation, an officer convicted and sentenced to dismissal as a result of general court martial proceedings will be processed pending appellate review of such proceedings as follows: 6. In reaching its determination, the Board can consider the applicant抯 petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. 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. For that reason, the Board recommended denying the applicant抯 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. 1535874 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. Army Regulation 600-8-24 (Officers Transfers and Discharges) prescribes the officer transfer from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, task, rules, and steps governing all work required to support officer transfer and discharges. a. Paragraph 5-17 states an officer convicted and sentenced to dismissal as a result of general court martial proceedings will be processed pending appellate review of such proceedings as follows: An Regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with AR 600𤾃0. b. Paragraph 1-21a provides that an officer will normally receive an honorable characterization of service when the quality of the officer抯 service has met the standards of acceptable conduct and performance of duty for an officer. c. Paragraph 1-21b provides that an officer will normally receive an under honorable conditions characterization of service when the officer抯 military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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. 4. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also 1. applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.