ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170019447 APPLICANT REQUESTS: an upgrade of his dishonorable discharge to a general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the Unites States) * Self-authored statement * Character letter from X___ X___ 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 that he is requesting an upgrade to help in securing a job. He states he has worked hard in becoming a productive citizen since being discharged. He is having difficulty in securing a job, since potential employers only see that he has a dishonorable discharge. He is recently married with children and wants to take care of his household. He is an active member in the church and his community, and because jobs are hard to come by in his area, he does odd jobs for income. He has taken welding classes and will do anything necessary to take care of his family. He requests that the Board review his discharge, and he prays for an upgrade. 3. The applicant provides a character statement from X___ X___, which states she has known the applicant for many years, and they recently got married in March 2017. She finds him to be trustworthy and always willing to help others out and ensure they don’t go down the same path that he went down. After his many attempts to find employment, he continues to stay positive. He is a very hard worker and she truly believes the applicant is a good man and has committed his life to the Lord. They are a family trying to live by Gods word. 4. A review of the applicant’s service records shows the following: a. His DD Form 4 (Enlistment/Reenlistment Document) reflects that he enlisted in the Regular Army (RA) on 3 October 1991. b. His DD Form 4 reflects that he was discharged for immediate reenlistment on 28 June 1994, and reenlisted in the RA on 29 June 1994. c. His DD Form 4 reflects that he was discharged for immediate reenlistment on 18 November 1996, and reenlisted in the RA on 19 November 1996. d. On 10 March 1998, he was convicted by a general court-martial of seven specifications of assault by unlawfully having sexual intercourse with a person while knowing he was infected with the Human Immunodeficiency Virus (HIV), by exposing them to his HIV infected bodily fluids; seven specifications of wrongfully have sexual intercourse with a woman not his wife; three specifications of sodomy, and one specification of failure to obey a lawful order to notify all prospective sexual partners of the fact that he has HIV prior to engaging in any sexual intercourse and to use condoms should he engage in any sexual intercourse with a partner. The court sentenced him to forfeiture of all pay and allowances, reduction to the grade of private/E-1, confinement at hard labor for 15 years, and a dishonorable discharge. e. On 12 April 1998, the convening authority approved the sentence and forwarded the record of trial for to the approval authority. f. General Court-Martial Order Number 37, dated 1 June 2000, affirmed and ordered the sentence duly executed. i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that on he was discharged from the Army on 14 July 2000. His DD Form 214 shows he completed 6 years, 5 months and 7 days of active service. He was retained in service 604 days for the convenience of the government per AR 635-200.It also shows in: * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Dishonorable * item 25 (Separation Authority), Army Regulation 635-200 * item 28 (Narrative Reason for Separation), As a result of court martial - other j. The applicant had continuous honorable active service from 3 October 1991 to 9 March 1998. He was awarded or authorized: * Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Driver/Mechanic Badge with Wheel Bar 5. The applicant previously applied to the Army Board of Correction of Military Records (ABCMR) and his request was denied. 6. By regulation, AR 635-200, 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. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the seriousness of the misconduct and the endangerment of others involved, 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. (Optional as applicable.) 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 635-200 (Personnel Separations – Enlisted Personnel), 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. c. Paragraph 3-7c (Under other than honorable conditions) sates 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 3-10 (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. 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) AR20170019447 4 1