BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180011814 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 August 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (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, he previously applied and received an upgrade of his BCD to an under other than honorable conditions (UOTHC) discharge. He was told he could apply for another upgrade in seven years. He received a court-martial for leaving without permission for 57 days. His wife was pregnant at the time; he was young and used poor judgement. He regrets this decision. Aside from his period of unauthorized leave, he fulfilled his duties and obligations and he feels his service was otherwise honorable. He had two noncommissioned officers (NCO) speak on his behalf at his hearing. He is trying to better himself and would appreciate an additional upgrade. 3. The applicant enlisted in the Regular Army on 23 January 1998. 4. Before a special court-martial on or about 3 February 2000, at Fort Bragg, NC, the applicant was tried and convicted of violating Article 85 of the Uniform Code of Military Justice (UCMJ). Specifically, he was convicted of absenting himself from his unit without authority, from on or about 8 October through on or about 3 December 1999. 5. The applicant's sentence included confinement for 90 days and separation from service with a BCD. The sentence was approved on 17 March 2000 and, except for the part of the sentence extending to a BCD, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 6. Special Court-Martial Order Number 12, issued by the Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 9 February 2001, noted that the applicant's sentence had been affirmed and ordered his BCD duly executed. 7. The applicant was discharged on 23 May 2001, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, section IV, as the results of a court-martial sentence. His service was characterized as bad conduct. 8. 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. 9. With respect to the applicant's request; there is no evidence to support his contention that he was previously granted an upgrade of his BCD. 10. The Board should consider the applicant's requests in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s 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 nature of his misconduct, the reason for his separation (court-martial) and whether to apply clemency. The applicant provided no evidence of post service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the punitive discharge the applicant received was too harsh and that a correction to his record was appropriate. 2. After reviewing the application and all supporting documents, the Board found partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period of service ending 23 May 2001 to reflect in item 24 (Character of Service) – “Under other than honorable conditions” vice “bad conduct.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess to that stated above. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: 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. Chapter 3 provided that an enlisted person would be given a bad conduct discharge 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 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 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 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 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) AR20180011814 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180011814 4 ABCMR Record of Proceedings (cont) AR20180011814 3