IN THE CASE OF: BOARD DATE: 3 January 2020 DOCKET NUMBER: AR20180003160 APPLICANT REQUESTS: in effect: * to add his Combat Infantryman Badge (CIB) to his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 October 2007 * to upgrade his bad conduct discharge (BCD) to an honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552 (b); however, the ABCMR 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: a. He looked at his service record documents and noticed his CIB was not listed. He states he served in Iraq and Afghanistan with the 101st Airborne Division. b. His discharge was inequitable because in 8 years of service, this was the only time that he had any adverse action. He states he served on two different combat deployments. One in Afghanistan and one in Iraq. The applicant adds, he reenlisted while in Iraq. He states he has also received awards for wars in Iraq and Afghanistan. He states his awards are as follows: * National Defense Service Medal (NDSM) * Global War on Terrorism Expeditionary Medal (GWOTEM) * Global War on Terrorism Service Medal (GWOTSM) * Army Service Ribbon (ASR) * CIB c. He states he has honorable service for his performance of duty while in the New York Army National Guard (NYARNG), from 9 April 1999 to 1 August 2001. He also states he has honorable service for his performance of duty while in the Regular Army (RA) from 1 [sic] August 2001 to 23 December 2003. 3. A review of the applicant’s service record shows: a. Having had prior enlisted service in the NYARNG in the military occupational specialty (MOS) of 11B (Infantryman), the applicant enlisted in the RA for 3 years in MOS 11B on 2 August 2001. He maintained continuous honorable active service from his date of enlistment to 24 December 2003. The applicant had an immediate reenlistment from 25 December 2003 to 26 October 2007. His reenlistment on 25 December 2003 reflects that he was in Sinjar, Iraq. b. DA Form 4187 (Personnel Action) shows the applicant was placed in an absent without leave (AWOL) status on 29 March 2005. Another DA Form 4187 shows he was dropped from the rolls, effective 28 April 2005. c. On 29 April 2005, the applicant was listed as a deserter on a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces). d DD Form 458 (Charge Sheet) shows the applicant’s immediate commander preferred a charge against him on 18 May 2005, for one specification of absenting himself from his unit without authority, on or about 29 March 2005 and remained absent until such time as he was apprehended. e. DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended on or about 2 August 2005. f. DA Form 4187 shows the applicant was confined by military authorities on 29 October 2005. g. On 2 November 2005, the applicant was found guilty by a general court-martial in accordance with General Court-Martial Order Number 3, dated 3 February 2006 of: * one specification of absenting himself from his unit without authority, on or about 29 March 2005, and remained so absent until he was apprehended on or about 2 August 2005 * one specification of wrongfully possessing and viewing five or more images of child pornography on his personal computer, on or about 1 June 2004 and 1 January 2005, which his conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces h. The court sentenced him to confinement for 22 months, a reduction to private (PVT)/E-1, and to be discharged from the service with a BCD. Only so much of the sentence as provided for reduction to PVT/E-1, confinement for 9 months, and a BCD was approved and, except for the part of the sentence extending to a BCD, would be executed. The applicant was credited with 9 days of confinement against the sentence to confinement. DA Form 4187, shows the applicant was released from confinement on 27 May 2006. i. On 5 April 2007, the U.S. Army Court of Criminal Appeals, having considered the issues personally specified by the appellant, approved findings of guilty and the sentence was approved by the convening authority correct in law and fact, the findings of guilty and the sentence was affirmed. j. General Court-Martial Order Number 154, dated 2 August 2007, ordered the sentence to confinement as served. The applicant was credited with 9 days of confinement against the sentence to confinement and the BCD was executed. k. With regard to the applicant’s request to add his CIB to his service record, his service record does not contain special orders awarding him the badge. His Enlistment Records Brief shows: * Section I (Assignment Information/OS/Deployment Combat Duty), no deployment or combat duty listed * Section VIII (Awards and Decorations), shows the applicant was awarded and/or authorized the following awards and badges: o NDSM o GWOTEM o GWOTSM o ASR l. Orders, dated 19 October 2007, reassigned the applicant to the U.S. Army transition point for processing for discharge on 26 October 2007. m. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations) Chapter 3 for court-martial, other and was issued a BCD. He completed 5 years, 3 months, and 24 days of active service with lost time from 29 March 2005 to 1 August 2005 and from 29 October 2005 to 25 May 2006. His DD Form 214 also shows in: * Item 12f (Foreign Service): “SEE BLOCK #18” * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized: he was awarded and/or authorized the following awards and badges: o NDSM o GWOTEM o GWOTSM o ASR * Item 18 (Remarks), states in part, “CONTUNUOUS HONORABLEACTIVE SERVICE: 20010802 – 20031224//IMMEDIATE REENLISTMENTS THIS PERIOD 20010802-20031224, 20031225-20071026…MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE…SOLDIER SERVED IN A IMMINENT DANGER PAY AREA: COUNTRY AND EXACT DATES UNKNOWN//NOTHING FOLLOWS” 4. Army Regulation 600-8-22, there are basically three requirements for award of the CIB: * the Soldier must be an infantryman satisfactorily performing infantry duties * the Soldier must be assigned to an infantry unit during such time as the unit is engaged in active ground combat * the Soldier must actively participate in such ground combat 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. Army Regulation 635-200, a member will be given a BCD 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. 7. 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 ABCMR 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. 8. The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. Furthermore, the Board determined that there was insufficient evidence in the applicant’s record to show he was authorized or awarded the CIB. The Board found that relief was not warranted. 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 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 600-8-22, paragraph 8-6, provides for award of the CIB. There are basically three requirements for award of the CIB. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. Specific requirements state that an Army enlisted soldier must have an infantry or special forces specialty and must have satisfactorily performed duty while assigned or attached as a member of an infantry, ranger, or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat. 3. 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 ABCMR 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. 4. Army Regulation 635-200, in effect at the time, states: a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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 3-11 states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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) AR20180003160 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1