ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20170017493 APPLICANT REQUESTS: an upgrade of his Bad Conduct Discharge (BCD) to a general (GD), under honorable conditions or an honorable discharge (HD) 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) * statement of support 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: a. He would like an upgrade, because the other parties involved were young and immature and could have handled the situation better. He only got into trouble once while enlisted and that was for pass violations. He did not rape the female who claimed he raped her. He would never do such a thing. It is not how he was raised and it is out of his character. He could have made better decisions that night, as well. He and the others involved were close knit friends before the night in question and he thinks that emotions played a part in how they got to this point. b. The female who accused him of rape went out to the club the next night like nothing ever happened, which he finds very awkward if one was just physically assaulted the night before. He was a great Soldier in the Army who showed up on time every day and did what he was told and beyond. It has been very hard finding a full-time job and supporting his family, since he has been out. It has been a struggle for his daughter who is now in college and needs his financial support. He regrets everything that female had to go through because of him and he still wishes her the best. c. All he is asking for is an upgrade of his discharge and another chance at living a normal life. He has learned and grown as a person so much since then and is pleading with the Board for a second chance. He would like to apologize to the then young female involved. He is sorry she had to go through this stressful process and hopes that she has found peace and is living a normal life nowadays. He wants to apologize to his unit and command as well, because they did not deserve all of the unneeded attention while getting ready to deploy. He also wants to say that he has completed three years of college and has one more before he receives his bachelor’s degree. He hopes the Board can find it in its heart to hear his sincerity and upgrade his discharge. It would be greatly appreciated. He is a great individual, father, and overall person. He thanks the Board very much. 3. The applicant provides a letter of support from a woman who states she has been in a relationship with him for the past six years. He has worked constantly to provide for his family and prove that he is not what his record labels him as. His record prevents him from reaching his full potential or the goals he has set for himself. He is a great person with a huge heart who only wants the best for himself and his family. Clearing his record will only further his chances of finding something better. She asks the Board to please review his record and consider the removal of the sex offender registration. She concludes by thanking the Board. 4. A review of the applicant’s service record shows: a. He enlisted in the Delayed Entry Program on 11 March 2004 and the Regular Army (RA) on 21 April 2004. b. On 8 August 2007, he executed an Oath of Extension which extended his original RA commitment by three months and established 14 December 2007 as the end of his obligated period of service. c. On 7 October 2007, he reenlisted in the RA for an additional two years. d. General Court-Martial Order Number 12, dated 3 September 2009, reflects the applicant was convicted, contrary to his plea, of raping Private First Class X__ X__. The rape occurred on or about 15 or 16 June 2007 (during his first enlistment period as extended). His sentence was adjudged on 10 April 2009, included reduction to the lowest enlisted grade, forfeiture of all pay and allowances, confinement for twenty-two months, and a BCD. The convening authority approved so much of the sentence as provided for confinement for eighteen months, total forfeitures, reduction to the lowest enlisted grade, and a BCD, and ordered all, but the BCD executed. e. General Court-Martial Order Number 86, dated 3 May 20011, ordered the BCD executed, as the applicant’s case was affirmed and Article 71(c) had been complied with. f. He was discharged from active duty on 1 July 2011, under the provisions of AR 635-200, Chapter 3, with a BCD, by reason of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years and 26 days of net active service with lost time from 10 April 2009 to 24 May 2010. It also shows he was awarded or authorized the: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 6. By regulation, a Soldier 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. 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, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the serious, criminal nature of the offense which led to the applicant’s discharge, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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. Title 10, U.S. Code, section 1552, further 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. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets 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 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. 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 Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under other than honorable conditions discharge) states a discharge under other than honorable conditions in an administrative separation from the service under conditions other than honorable. d. Paragraph 3-11 (Bad conduct discharge) states a Soldier 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017493 4 1