ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 October 2019 DOCKET NUMBER: AR20170017778 APPLICANT REQUESTS: in effect, reconsideration of his earlier request to upgrade his discharge from bad conduct to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter 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 AR20140017396 on 21 October 2014. 2. The applicant states that he is requesting an upgrade of his discharge due to having had to pay a huge price by giving up his service to his country and his career. He feels that he has earned and an upgraded status. The charges that he received at the time were biased and stacked to merit the case and pushed to a court-martial. There has not been a review of the case to override his discharge. There were no documented reviews of any health concerns or a dental examination within 180 days of his discharge. 3. The applicant provides a self-authored letter that states he is writing in response to the letter from the office of Case Management for case number AR20140017396. He would like to get a response on this matter. He would like to thank the Board for lending a review and ear to his request. He realizes there are numerous request ahead of his arriving daily. The case management division letter was dated 17 October 2014. 4. A review of the applicant's service record shows the following: a. He enlisted in the Regular Army (RA) on 7 February 1984. He reenlisted in the RA on 24 September 1986. a. b. He served in Germany from 25 May 1984 to 24 November 1985 and from 7 November 1987 to 5 April 1990. c. General Court-Martial charges were preferred on 31 May 1989. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of intent to commit rape, commit assault by pushing the alleged victim onto her bed, opening her robe, and fondling her breasts on or about 13 May 1989. d. General Court-Martial charges were preferred on 7 August 1989. His DD Form 458 indicates that he was charged with one specification to commit an indecent assault, of a person not his wife, by putting his arms around her, pulling her against him with his hand near her breast and continuing to keep his arms around her after he was asked to release her, with intent to gratify his lust on or about 29 March 1989. He was charged with one specification on indecent language on or about 29 March 1989 and 13 May 1989. e. Memorandum, dated 18 August 1989, advice on disposition of court-martial charges states that after a thorough review of the charge, it is recommended that the charge, additional charge and their specifications be referred to trial by general court-martial. f. Memorandum, dated 18 August 1989, the convening authority approves the recommendation of the Staff Judge Advocate (SJA) for trial by general court-martial. g. DA Form 4430-R (Report of Result of Trial), dated 3 November 1989, shows * Assault with intent to commit rape on or about 13 May 1989; Guilty * Communicate indecent language on or about 29 March 1989; Guilty * Communicate indecent language on or about 13 May 1989; Guilty * Accused sentenced to be discharged from the service with a bad conduct discharge, adjudged on 3 November 1989 h. Attorney letter, dated 20 November 1989, waives review of the authentication of the record of trial by reserving the right with respect to post trial matters in the applicant's case. i. On 12 January 1990, the SJA recommended approval of the sentence as adjudged for the following: * Assault with intent to commit rape on or about 13 May 1989; Guilty * Communicate indecent language on or about 29 March 1989; Guilty * Communicate indecent language on or about 13 May 1989; Guilty * Accused sentenced to be discharged from the service with a bad conduct discharge * j. Attorney letter, dated 8 February 1990, states that there is a reasonable doubt as the guilt of the accused. Specifically through cross-examination of prosecution witnesses and the testimony of defense witnesses he submit, that there is a fare doubt as to the guilt of the accused. He requests that the findings are set aside or in the alternative disapprove the punitive discharge. k. Memorandum, dated 15 February 1990, shows that the defense counsel requested a defense delay in submitting matters for the period of 22 January 1990 thru 14 February 1990. The written request was not received in time for inclusion in the record of trial. l. General court-martial order number 2, dated 15 February 1990, shows the applicant status concerning the specification of: * Assault with intent to commit rape on or about 13 May 1989; Guilty * Communicate indecent language on or about 29 March 1989; Guilty * Communicate indecent language on or about 13 May 1989; Guilty * Accused sentenced to be discharged from the service with a bad conduct discharge, sentence adjudged on 3 November 1989 m. Memorandum, dated 15 February 1990, addendum to SJA recommendation states that he disagrees with the accused assertion that legal error occurred during the trial and that corrective action on the findings or sentence is not necessary and recommends sentence approval as adjudged. n. On 15 February 1990, the convening authority approved the sentence of the applicant's court-martial trial. o. General court-martial order 5, dated 22 January 1991, states that the applicant was sentenced to a bad conduct discharge, sentence adjudged on 3 November 1989 was affirmed on 15 February 1990 p. He was discharged on from active duty on 15 February 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of AR 635-200 (Personnel Separations- Enlisted Separations) chapter 3 as a result of court-martial with a bad conduct discharge. Block 24 (Character of Service) bad conduct. Block 28 (Narrative Reason for Separation) as a result of court-martial, other. It also shows continuous honorable active service from 7 February 1984 to 23 September 1986. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. AR 635-200, chapter 3 of this regulation states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special 1. court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 8. AR 635-5 (Personnel Separations - Separation Documents) states that: * Block 24 (Character of Service) Characterization or description of service is determined by directives authorizing separation; Proper completion of this block is vital since it affects the soldier's eligibility for post-service benefits * Block 28 (Narrative Reason for Separation) enter the narrative reason for separation as shown in AR 635-5-1 based on the regulatory or other authority 7. 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, the Board determined relief is not warranted. The applicant's contentions, his service record, the frequency and nature of his misconduct and the reason for his separation were carefully considered. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence oif in-service mitigation for the serious misconduct and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of clemency. Based upon a preponderance of evidence to include the offense resulting in the applicant's separation being of a serious, criminal nature against another, 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 to amend the decision of the ABCMR set forth in Docket Number AR20140017396 on 21 October 2014. 1/2/2020 X CHAIRPERSON Signed by: X 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 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. AR 635-200, chapter 3 of this regulation 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. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted 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 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 a. c. Chapter 3 of this regulation 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. 4. AR 635-5 (Personnel Separations - Separation Documents) states that: * Block 24 (Character of Service) Characterization or description of service is determined by directives authorizing separation; Proper completion of this block is vital since it affects the soldier's eligibility for post-service benefits * Block 28 (Narrative Reason for Separation) enter the narrative reason for separation as shown in AR 635-5-1 based on the regulatory or other authority 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 based on 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. //NOTHING FOLLOWS//