ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 September 2019

	DOCKET NUMBER:  AR20180000168


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge

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)

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, he would like an upgrade of his discharge so that he may have access to the programs and benefits available to Veterans.

3.  A review of the applicant’s service record shows: 
   
   a. He enlisted in the Regular Army on 10 February 2004.  
   
   b. Department of the Army Report of Result of Trial shows during a trial by General Court-Martial on 7 May 2008, he was convicted of one specification of being absent without leave (AWOL), one specification of carnal knowledge, and one specification of possession of child pornography.  The court sentenced him to be reduced to the grade of Private/E-1, confinement for 15 months, and discharged from the service with a bad conduct discharge.  In addition, DNA processing in accordance with (IAW) 10 U.S.C. § 1565 is required and his conviction required sex offender registration in accordance with 42 U.S.C. § 14071.
   
   c. General Court-Martial Order Number 27, dated 31 October 2008, reflects the convening authority approved only so much of the sentence as provides for reduction to the grade of Private/E1, confinement for 15 months 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. After completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad discharge duly executed.  On 23 July 2009, Headquarters, United States Army Armor Center, Fort Knox, Kentucky executed the final order.
   
   e. The applicant was discharged on 10 September 2009.  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 (Personnel Separations - Enlisted Personnel):  

      (1)  He completed 4 years, 7 months and 28 days of active military service. 
      
      (2)  His service was characterized as bad conduct and he was assigned the separation code JJD.  
      
      (3)  Block 29 (Dates of time lost during this period) reflects the applicant had time lost from 14 June 2007 to 16 July 2007 and from 15 December 2007 to 14 October 2008.

4.  Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) 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.  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.

6.  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 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 offenses resulting in the applicant’s separation being of a serious, criminal nature, as well as the failure to demonstrate any acceptance of responsibility and remorse for the events leading to his separation, 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.  AR 635-200 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.

2.  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. 

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180000168


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