ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20170016428 ON BEHALF OF THE APPLICANT, COUNSEL REQUESTS: an upgrade of his discharge to a general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Tully Rinckey PLLC legal brief * Letter from spouse * Partial copy of military personnel file * Awards, Achievements, and Appreciation certificates * Project Management Institute * Resume * Credit report 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. Counsel states, in effect: a. When the applicant was assigned to his first unit at Fort Bragg, he was singled out for demeaning maltreatment. He went home and stayed there until he surrendered to his commander. He begged to be deployed with his fellow Soldiers, but was sent to Fort Knox and court-martialed. b. Since his discharge, the applicant has graduated from college, obtained a top secret clearance, and worked for U.S. government agencies as an IT specialist. He is a family man whose eldest son recently enlisted in the U.S. Air Force. His accomplishments warrant consideration and clemency. c. He is asking for reconsideration of his discharge for peace of mind. Even after 26 years, the bad conduct discharge is something he cannot seem to let go. 3. Counsel provides: a. Letter written by spouse, dated 30 January 2017, speaks to the applicant’s character dating back to the time they first met in November 2002 until now. She states, 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 believes these personality traits will serve him well in any career and that he will be of great benefit to any employer. b. Letter, dated 28 June 2017, authored by X___ X___, states he has known the applicant for three years. Further stating, this an extremely knowledgeable individual that possesses an excellent work ethic. With his academic knowledge and military background, he has a lot to offer the youth that he will serve in any school system. This is evident in the fact that the applicant has two children that matriculated through the system. c. Fork Union Military Academy Diploma, dated 3 June 1989, reflects the applicant satisfactorily completed the College Preparatory course of study prescribed for graduation. d. Partial copy of military personnel files, which include the applicant’s DD Form 4 (Enlistment/Reenlistment Document), his DD Form 214, and his DA Form 2-1 (Personnel Qualification Record). e. Certificates from the following agencies: * Science Applications International Corporation (SAIC) Five Year Service Award * U.S. Department of Agriculture Outstanding Customer Service * Office of the Inspector General Certificate of Appreciation * NCI Information Systems, Inc Certificate of Achievement f. Project Management Institute certificate reflects the applicant was bestowed the global credential for Project Management Professional on 8 July 2011. g. Professional resume, which chronicles the applicant’s qualifications, summary of skills, education and credentials, and certifications and memberships. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 March 1990. b. On 3 April 1991, he was convicted by a special court martial of 3 counts of being absent without leave, from 6 to 28 August 2009 and 26 September 1990 to 27 January 1991, and missing movement through design. The court sentenced him to reduction to the grade of E-1, forfeiture of $502.00 pay per month for 2 months, confinement for 2 months, and a bad-conduct discharge. c. Special Court-Martial Order (SPCMO) Number 4, dated 19 June 1991, 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. On 15 January 1992, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. e. After completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. On 14 July 1992, Headquarters, U.S. Army Armor Center and Fort Knox, KY executed the final order. SPCMO Number 59, dated 20 July 1993, rescinded SPCMO Number 69 having been issued prior to completion of appellate review. f. The applicant was discharged on 13 August 1992 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 his service characterized as bad conduct. He completed 1 year and 11 months of creditable active military service with 449 days of lost time. 5. 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. 6. 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 Army Board for Correction of Military Records 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. 7. The Board should 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 relief was warranted. Based upon the type of misconduct which led to the applicant’s separation and the post-service character evidence submitted by the applicant, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 Enlisted Administrative 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 3-11 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. 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. ABCMR Record of Proceedings (cont) AR20170016428 5 1