IN THE CASE OF: BOARD DATE: 16 February 2021 DOCKET NUMBER: AR20180012122 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-Authored Statement * Applicant’s Resume * 6 Employee Awards * Character Reference from Applicant’s Mother * Character Reference from Applicant’s Co-Worker 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 first he would like to thank the Board for taking the time to review his application. He states unfortunately his military service was cut short due to his irresponsible behavior and some dumb choices. He says there is no excuse for his actions and he takes full reasonability for them. He states he was young, full of excitement and away from home alone for the first time in his life. He was so eager to become a man and an honorable Soldier that he didn't realize some of the choices he made were very irresponsible and went against all of his core values. Not only has this affected his military career, it has had an impact on others. He states the time he spent at Fort Knox is one of the reasons he is a successful citizen today. Getting his freedom taken and missing that time around family and friends made him really appreciate life. It made him value life and take others' feelings, ideals, visions and character at a great value. The way you treat people is very important in everyday living because the energy you give off dictates the mood of the situation. He understands respecting others and taking their feelings into consideration holds a lot of value in a relationship with others and everyday contact with people. The negative energy from this situation has been converted into positive actions. All he lives for are his three little boys. He says he’s doing his best to raise his children. He states his oldest is a two time all American in track and field, and is now entering 2nd grade. They try to keep his son focused and give him all the opportunity he didn't have growing up. He says his son's younger brother is following in his footsteps, due to his strong leadership and focus. 3. The applicant provides: a. His resume to show he his professional accomplishments since his discharge from the military. b. Awards from his employer detailing certain achievements. c. A character reference from the applicant’s mother stating she wanted to write from a mother's perspective, which is obviously a bit biased, to let the Board know what kind of person her son is. But, she adds, don't assume that she’ll be writing remarkable things simply because the applicant is her son. She says please understand that she would be impressed and in awe of him even if he weren't related to her. That's just how he has evolved over the years. She says from the time he was a little boy, her son, the applicant, had a go-getter personality. He has persevered through many ups and downs and remained steadfast. During his childhood his father was not around much, but that experience has taught him how to be the great dad that he is today to his sons. He has been to court numerous times and won 50/50 custody. In her eyes he gets the father of the year award. He has and continues to make sacrifices concerning his sons future. He's involved in their schooling and how they are evolving as well. She says she calls him Mr. Mom. She says the applicant is also quick to encourage and lift those up who are less fortunate. She has had the pleasure of witnessing him give away some of his prize possessions to the homeless. She says she was so proud. She says the applicant demonstrated everyone deserves a chance, he's not the one that talks about people but tries to help where he can. She states the applicant is an upstanding citizen and continues to rise above adversity. In addition to working one job, they were so proud to hear he had started his own cleaning business which her and her husband had the pleasure of helping out with over the Christmas holiday. He has excellent work ethic and he is a very hard worker and continues to strive for better jobs. She states she really admires his drive to do better for his family. She states she doesn’t know how he does it but he does it well. Her son, the applicant, is a talented and a born leader and is an asset to society. She says she wishes she could say that she had everything to do with it but she knows it is just who he is. She says she is sure you will find him to be everything she has described, and more. d. A character statement from the applicant’s coworker which states it is with great pleasure that he is writing this letter on behalf of the applicant. He states the applicant was a coworker of his for several years, and he says he admires his work ethic. He is an extremely hard worker, and is always dedicated to completing a task no matter how long it takes him. He is also a very goal driven individual that sets the bar high, and accomplishes his goals regardless of distractions, or adversities in his way. To his knowledge, the applicant was always on time for work, and the majority of the time he was there earlier than expected. He states he never saw him not prepared to do what he was assigned to do. He states the applicant was and is always prepared for a challenge, and has more than one plan to complete a task. The applicant is a very positive and motivated individual that he is glad to say that he has the pleasure of knowing. He states he would recommend the applicant without any reservation. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 10 April 2003. b. On 7 February 2005, he was confined in the Regional Correctional Facility in Fort Knox, KY to serve his sentence. c. General Court-Martial (GCM) Order Number 5, dated 5 May 2005, shows he was found guilty of one specification of attempting to place his penis in the mouth of another Soldier, in the presence of others. d. His sentence was adjudged on 7 February 2005 and was a reduction to private (PV1)/E-1, confinement for 8 months and a bad conduct discharge. The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, was executed. e. On 30 June 2006, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact. f. General Court-Martial Order Number 116, dated 12 June 2008, shows his sentence was finally affirmed and the bad conduct discharged was ordered duly executed. g. The applicant was discharged on 3 October 2008. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial. This form further lists his character of service as "bad conduct." He completed 4 years, 8 months and 25 days of active service with lost time from 7 February 2005 to 20 August 2005. 5. By regulation a soldier 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. 6. 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. 7. 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 reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding his misconduct), his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. Despite the seriousness of his offense, the applicant provided evidence of post-service achievements (Resume that shows his professional accomplishments since his discharge from the military and awards from his employer detailing certain achievements) as well as letters of reference in support of a clemency determination. The Board determined that although the character of service the applicant received upon separation was not in error or unjust, Board members determined clemency is appropriate and voted to upgrade his character of service to general, under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XX: XX: XXK: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 3 October 2008 to show the character of service as general, under honorable conditions. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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 (General) 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. A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 3-11 of that regulation provides, in pertinent part, a oldier 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 3. 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 based on 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) AR20180012122 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1