ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170006581 APPLICANT REQUESTS: * reconsideration of his earlier request for an upgrade of his dishonorable discharge to general, under honorable conditions * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge). 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 AC98-09084 on 19 November 1998 and AR2001053099 on 23 May 2001. 2. The applicant states he failed his victim, the Army, his students, service men and women, and most importantly his wife and children. He has lived each day for the last 24 years in deep sorrow for what he did. He does not think a day has gone by that he has not prayed the victim has forgiven him and the scars he caused. He lost the thing that meant more to him than anything and that was serving his country until he was forced to retire. 3. A review of the applicant’s service record shows: a. Having prior service in the Army National Guard, he enlisted in the Regular Army on 8 June 1983. b. He served in Alaska from 10 August 1987 to 3 August 1991. c. He was convicted by a general court-martial on 19 November 1993 of: * one specification of violating a general regulation * one specification of maltreatment and sexual harassment of subordinate * one specification of rape * one specification of sodomy * one specification of adultery d. The court sentenced him to reduction to the grade of E-1, forfeiture of all pay, confinement for 7 years, and a dishonorable discharge. e. The U.S. Army Court of Criminal Appeals affirmed the sentence after consideration of the entire record, including consideration of the issues personally specified by the applicant. The Court held the findings of guilty and the sentence approved by the convening authority correct in law and fact. f. General Court-Martial Order Number 29, dated 26 March 1996, Article 71(c) having been complied with affirmed and ordered the sentence duly executed. g. He was discharged from active duty on 10 May 1996 with a dishonorable discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 years, 5 months, and 11 days of active service. It also shows he was awarded or authorized: * Good Conduct Medal (3rd Award) * National Defense Service Medal * Army Achievement Medal (Third Oak Leaf Cluster) * Army Commendation Medal (Third Oak Leaf Cluster) * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon 4. By regulation, a member 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. 5. Also by regulation, applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 6. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that they could reach and fair and equitable decision without a personal appearance from the applicant. The Board also determined that there was insufficient evidence to grant relief. Based upon the seriousness and criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that the 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 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set 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 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other Than Honorable Conditions) 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, homosexuality, security reasons, or for the good of the service. d. Paragraph 3-11 (Bad Conduct Discharge Certificate) states a member will be given a bad conduct discharge pursuant only to an approve sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. e. Paragraph 3-10 (Dishonorable Discharge Certificate) states a member 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. AR 15-185 (ABMCR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABMCR will decide cases on the evidence of record. It is an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABMCR may grant a formal hearing whenever justice requires. 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 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. ABCMR Record of Proceedings (cont) AR20170006581 4 1