ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170014494 APPLICANT REQUESTS: * an upgrade of his discharge * change the narrative reason for separation 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum Opinion addressed to Judge X , dated 12 February 2003 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, in effect: a. His discharge is inequitable because it was based on a single incident; he did not have any previous charges. The punishment he received for the one mistake he made was too severe. The lack of adequate defense counsel precluded a possible Uniform Code of Military Justice (UCMJ) court martial defense, leaving him the option of accepting a plea agreement of separation and forfeiture of pay and allowances. Had his defense counsel been adequate, he may have had an opportunity to finish his enlistment or at least argued his innocence. b. It is clear in the record that the military judge fully intended to ask the convening authority to allow him to complete his term of enlistment and possibly earn a better discharge. He feels he would have been given clemency. He performed his service obligations with exemplary actions as shown by the Army Achievement Ribbon, expert qualification badges, attaining honor graduate status from both basic training and a. advanced individual training, and the parachutist badge. All, of which, were earned within a year and a half of entering the service. 3. Review of the applicant's service records show: a. The applicant enlisted in the Regular Army on 1 June 1999. b. On 27 June 2001, he was convicted by a general court-martial of one specification of committing carnal knowledge with a female under 16 years of age and one specification of committing indecent acts upon a female under 16 years of age. The court sentenced him to a bad conduct discharge, confinement for 11 months, forfeiture of all pay and allowances, and to be reduced to private/E-1. c. On 20 November 2001, the convening authority 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. d. Memorandum Opinion, dated 12 February 2003, submitted by the Deputy Clerk of Court, U.S. Army Court of Criminal Appeals, states the following: (1) Appellant (applicant) asserts that the staff judge advocate (SJA) erred by failing to correctly advise the convening authority (CA) of the military judge's clemency recommendation in the SJA's post-trial recommendation (SJAR) as required by Rule for Courts-Martial [hereinafter R.C.M] 1106(d)(3)(B). Thus, they do not agree with government's concession of error. (2) On 27 June 2001, after sentencing appellant, the military judge announced, "I recommend that the convening authority, in consultation with the accused's chain of command, consider suspending the bad conduct discharge, allowing the accused to complete his enlistment." The judge also recommended clemency as to the forfeiture of pay and allowances. The record of trial in this case was not authenticated until four months later, on 26 October 2001. (3) In the SJAR, dated 31 October 2001, the SJA told the CA, "The military judge recommended the convening authority defer or waive the automatic forfeitures of pay, and to suspend the execution of the bad conduct discharge." The SJA recommended, the CA "approve the sentence as adjudged." (4) On 13 November 2001, appellant's detailed trial defense counsel, Captain X submitted matters pursuant to R.C.M. 1105. She asked the CA to "follow the military judge's recommendation and disapprove the Bad Conduct Discharge." She repeated this erroneous information, and referenced it a third time in the petition. Later she said, "to disapprove the discharge will conform to the military judge's request." She closed the petition with one more inaccurate assertion, "The (1) defense requests you support the military judge's recommendation and disapprove the discharge." (5) On 20 November 2001, in an addendum to the SJAR, the SJA noted the defense counsel's request for disapproval of the bad-conduct discharge and said, "[T]he military judge recommended the convening authority defer or waive the automatic forfeitures of pay and to defer the execution of the bad conduct discharge." The SJA again recommended approving the sentence with no more clemency than the previously approved deferral and waiver of automatic forfeitures pursuant to Article 58b, UCMJ. This waiver was the product of a 6 July 2001 defense request for a deferment of the "adjudged" forfeitures under Article 57(a), UCMJ, and (presuming from the context of the cited authority) a waiver of the automatic forfeitures for the benefit of appellant's family pursuant to R.C.M. l lOl(d). In citing to the military judge's clemency recommendation, trial defense counsel said the judge "stated for the convening authority to defer the forfeitures on behalf of the family and to defer the Bad Conduct Discharge." This erroneous assertion began the confusion as to the exact nature of the military judge's recommendation concerning the punitive discharge. (6) On 13 July 2001, the SJA recommended that the CA approve the deferral request, noting that "[t]he court recommended the Convening Authority use his discretion to direct payment of forfeitures for the maximum period possible to the accused's wife and two minor children, and to defer the execution of the bad-conduct discharge." (Emphasis added.) The CA approved that request and ultimately did not approve the adjudged forfeitures in his initial promulgating action, contrary to his SJA's recommendation. e. Notice of Court-Martial Order Correction, dated 12 February 2003, reflects the following corrections were made in order to reflect the true proceedings at the trial of United States, Appellee v. Private Bra G. Ru , Appellant: (1) To reflect the grade of the accused as Private E-2. (2) To reflect that Charge I was an offense of Article 120. (3) To reflect that Charge II was an offense of Article 134. (4) By deleting the language of Specification 1 of Charge II and substituting the following: "Committed an indecent act (and assault) upon Ms. X., a female under 16 years of age, by fondling her breasts with intent to gratify his sexual desires, between on or about 25 August 2000 and on or about 27 August 2000. Plea: Guilty. Finding: Guilty. Dismissed on Motion of Trial Counsel after plea." f. Based on General Court-Martial Order Number 209, dated 2 July 2003, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. The automatic forfeiture of pay and allowances required by Article 58b was deferred a. under the provisions of Article 57(a)(2), UCMJ, effective 13 July 2001 until 20 November 2001. The initial action was incorrect in addressing this action. The automatic forfeiture of pay and allowances required by Article 58b, UCMJ, was waived effective 13 July 2001 until 13 January 2002, with the direction that those funds be paid to the accused's spouse and custodian of his minor children g. General Court-Martial Orders Number 209, issued by the Headquarters, U.S. Army Armor Center and Fort Knox, KY on 2 July 2003, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. h. The applicant was discharged on 2 January 2004. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). (1) He completed 3 years, 10 months, and 6 days of active military service with lost time from 27 June 2001 to 19 March 2002. (2) His service was characterized as bad conduct and he was assigned the separation code JJD. 4. By regulation, AR 635-200, para 3-10 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. 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 seriousness of the misconduct, the Board concluded that characterization of service and narrative reason for separation received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s 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. 5/13/2019 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. 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 (AR) 635-200 (Active Duty Separations) sets forth the basic authority for the separation of enlisted personnel, as a result of court-martial. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 3-10 states that a Soldier will be given a bad conduct 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. e. 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. 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. 1. 4. AR 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 5. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to 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 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.