ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20180000236 APPLICANT REQUESTS: * upgrade of his bad conduct discharge * reentry and separation codes changed APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR20090016075 on 30 March 2010. 2. The applicant states, in effect, he does not feel his separation was an injustice. He was a young punk kid back then and he has changed. He acquired diesel mechanic skills; therefore, he would like to reenlist for a second chance at the Army. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 July 2006. b. Department of the Army Report of Result of Trial shows during a trial by General Court-Martial on 9 July 2007, he was convicted of one specification of being absent without leave (AWOL), one specification of desertion, four specifications of larceny, and one specification of breaking restriction. The court sentenced him to be reduced to the grade of Private/E-1, confined for 50 months, forfeiture of all pay and allowances, and discharged from the service with a bad conduct discharge. c. General Court-Martial Order Number 16, dated 24 September 2007, reflects the convening authority approved only so much of the sentence as provides for reduction to the grade of private/E1, forfeiture of all pay and allowances, confinement for 36 months (vice 50 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 20 February 2009, U.S. Army Field Artillery Center and Fort Sill, OK executed the final order. e. The applicant was discharged on 8 May 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 10 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 was had time lost from 3 April 2007 to 25 April 2007 and from 9 July 2007 to 8 May 2009. 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 short term of honorable service completed prior to the misconduct involving offenses of a criminal nature, the Board agreed that the applicant's discharge characterization, reentry and separation codes were 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) AR20180000236 4 1