ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 March 2020 DOCKET NUMBER: AR20170004198 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his dishonorable discharge to general under honorable conditions or uncharacterized. 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). REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated 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. Only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b stated 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, or a characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. c. Paragraph 3-9 stated a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except in the following circumstances: (1) when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case; or (2) when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the government, and Secretarial plenary authority. d. Paragraph 3-10 stated a Soldier 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 ordered duly executed. 2. Title 10, U.S. Code, section 1552(f), 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. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090009094 on 14 October 2009. 2. The applicant states his dishonorable discharge disqualifies him for medical services at the Department of Veterans Affairs hospital. a. The offense happened when he was 19 years old and he is now 49 years old. b. He had mental issues and anger problems. He was not aware that he suffered from bipolar disorder. He was young and had a fight in high school, which was one of the reasons he had to join the Army. The recruiter got his assault charges dismissed. c. He had no control over the accident that took place. He was incarcerated for his crime. d. Item 5 of the DD Form 293 states if he was not on active duty for at least 180 days, he can request to change his discharge to uncharacterized with the narrative reason for separation of entry-level separation. 3. His records show he enlisted at 18 years of age. 4. On 29 March 1990, he was confined at the Philadelphia Naval Brigade for violating Article 80 (Attempted Rape), Article 91 (Disrespecting a Noncommissioned Officer), and Article 134 (Communicating a Threat). 5. Headquarters, 10th Mountain Division (Light Infantry), General Court-Martial Order Number 6, dated 15 May 1990, shows: a. He was found guilty of the following charges and specifications: * Article 80 – attempted rape on or about 6 January 1990 * Article 91 – being disrespectful in language toward a superior noncommissioned officer on or about 24 January 1990 * Article 134 – wrongfully communicating a threat to injure a female on or about 6 January 1990 b. He was sentenced to confinement for 4 years, forfeiture of all pay and allowances, and a dishonorable discharge. c. The convening authority approved the sentence except for the part extending to a dishonorable discharge. The record of trial was forwarded for appellate review. 6. On 8 January 1991, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 7. U.S. Disciplinary Barracks, U.S. Combined Arms Command and Fort Leavenworth, General Court-Martial Order Number 371, dated 1 November 1991, states the sentence to dishonorable discharge, forfeiture of all pay and allowances, and confinement for 4 years was finally affirmed and ordered execution of the applicant's dishonorable discharge. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 November 1991 by authority of Army Regulation 635-200, paragraph 3-10, as a result of court-martial. He completed 7 months and 6 days of net active service and had 612 days of lost time from 28 March 1990 to 29 November 1991. His service was characterized as dishonorable. He was authorized award of the Army Service Ribbon (for successful completion of initial entry training). 9. On 14 October 2009, the ABCMR denied his request to upgrade his discharge. The Board determined his conviction and discharge were effected in accordance with applicable laws and regulations and appropriately characterized the misconduct for which he was convicted. 10. On 5 March 2020, the Army Review Boards Agency Medical Advisor rendered an advisory opinion in the processing of this case. He noted the applicant alleges a diagnosis of bipolar disorder contributed to the behaviors for which he was confined and dishonorably discharged. However, mitigation of crimes of a sexual nature would not meet the standards applied under liberal consideration. Attempted rape by the applicant would not be supported by the natural course of the diagnosis of bipolar disorder. Furthermore, there is no documentation found in his records or submitted to support that he was ever diagnosed with or treated for bipolar disorder or any other behavioral health condition while serving on active duty in the Army. Based on all available information, the Medical Advisor opined that an upgrade or change in the characterization of the applicant's discharge is not indicated at this time. 11. On 10 March 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the review and conclusions of the advising official, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the review and conclusion of the advising official and concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors for an upgrade. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 to amend the decision of the ABCMR set forth in Docket Number AR20090009094 on 14 October 2009. 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): 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004198 6 1