IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180006168 APPLICANT REQUESTS: The applicant requests, in effect, that his pre-court-martial rank of Sergeant, E5, be restored. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Official Records 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. 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 AR20160006327 on 17 April 2018. 3. The applicant states his 1993 bad conduct discharge was upgraded to an honorable discharge in 1994 or 1999. He further states he believes his record to be in error or unjust due to moving from Germany in 1993 to the United States and being on excess leave for about 3 years. 4. On 25 June 1985, the applicant enlisted in the Regular Army for a period of 3 years. He reenlisted on 15 January 1988 and 8 June 1990. He was promoted to the rank and pay grade of sergeant/E-5 effective 1 February 1993. 5. On 18 February 1994, the applicant was arraigned, tried and convicted by a general court-martial. He was found guilty by a general court-martial of violating Articles 92 and 121 of the Uniform Code of Military Justice (UCMJ). a. Specifically, he was convicted of possessing a firearm in downtown Baumholder, Germany, while not engaged in any authorized use and not transporting for any authorized purpose, and of stealing German currency of a value of more than $100. b. His sentenced consisted of reduction to the pay grade of E-1, forfeiture of $554.00 pay per month until the discharge was executed, confinement for six months, and a bad conduct discharge. 6. Orders Number 139-6, issued on 18 April 1994, directed the applicant's placement on excess leave status pending appellate review. 7. On 25 September 1995, after completion of appellate review, General Court-Martial Order Number 58 announced the applicant's sentence to a bad conduct discharge was affirmed and ordered duly executed. 8. The applicant's official military personnel file (OMPF) does not contain a DD Form 214 (Certificate of Release or Discharge from Active) specifying the date or characterization of his discharge. However, his OMPF contains a DA Form 1569 (Transcript of Military Record), issued by the U.S. Army Reserve (USAR) Personnel Command (AR-PERSCOM), St. Louis, MO, on 7 October 1999, which shows he was honorably discharged on 12 April 1994, in the rank of private/pay grade of E-1, by reason of completion of required active service. This reason is erroneous since he was discharged by a court-martial order. 9. During the processing of this case, an inquiry was made to the Army Review Boards Agency, Clemency and Parole Board staff, regarding the applicant's clemency petition. This office stated there is no evidence indicating the applicant submitted a clemency request to the U.S. Army Clemency and Parole Board. 10. In support of his case, the applicant provided a Department of Defense Manpower Data Center Certificate of Official Records that shows he was separated from active duty on 12 April 1994 (no rank shown on this form). 11. There is no evidence in the applicant’s available records, and he provided no evidence that shows he submitted a petition to the Army's Clemency and Parole Board, or that his discharge was upgraded from a bad conduct discharge to an honorable character of service as a matter of clemency. 12. Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. The regulation prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 14. Army Regulation 15-185 (ABCMR), provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 15. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. General Court-Martial Order 10, dated 13 April 1994, issued by Headquarters, 1st Armored Division, Germany, sentenced the applicant to a bad conduct discharge, reduction to the grade of Private E1, forfeiture of $554 pay per month until the discharge is executed, and confinement for six month. The order noted that the period of confinement for 6 months had been served between his arrest and the court-martial order. Issuing the bad conduct discharge was pending appellate review. Accordingly, on 13 April 1994, the applicant was placed on excess leave pending appellate review by orders 139-6 issued by the 520th Personnel Service Company in Germany. There was no error in the applicant being placed on excess leave. There is no error in the applicant’s reduction to E1 nor is there any basis to restore his rank to sergeant E5. 3. On 25 September 1995, after completion of appellate review, General Court-Martial Order Number 58 announced the applicant's sentence by the U. S. Army Military Court of Appeals had affirmed that the general court-martial findings and sentence were proper and in accordance with military law and ordered the bad conduct discharge be issued. 4. On 7 October 1999, the U.S. Army Reserve Personnel Command issued the applicant a transcript of military records erroneously showing that the applicant was discharged on 12 April 1994 with a characterization of honorable. This was contrary to the General Court-Martial Orders issued. The records also show that the applicant was placed on excess leave on 13 April 1994 pending appellate review. There are no orders discharging the applicant on 12 April 1994 so this statement on the Transcript of Military Records is also erroneous. 5. After reviewing the application and all supporting documents, the Board found that relief is not warranted nor any basis to amend the Board’s prior decision AR20160006327 on 17 April 2018. 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 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. Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. The regulation prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 4. Army Regulation 15-185 (ABCMR), provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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. 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, 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. b. 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) AR20180006168 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180006168 6 ABCMR Record of Proceedings (cont) AR20180006168 5