ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180015058 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge to a general under honorable conditions discharge. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Four Letters/Character References 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. The applicant states since his discharge he has been living a straight and honorable life. 3. On 24 July 1998, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 4 years. 4. On 14 March 2001, the applicant was convicted by general court-martial for * one specification of being derelict in the performance of his duties * one specification of making a false official statement * one specification of steal property other than military property of a value $100.00 * two specifications of forging the signature of another Soldier on certain checks, an aggregate total of $1,133.00. 5. The applicant was sentenced to reduction to private one (PV1)/E-1, forfeiture of all pay and allowances, confinement for 12 months, and to be discharged from the service with a bad conduct discharge. On 22 August 2001, only so much of the sentence was approved as provided for the reduction to PV1, confinement for 8 months, forfeiture of all pay and allowances, and a bad conduct discharge, and with the exception of the bad conduct discharge, ordered executed. On 20 February 2003, after being affirmed, the bad conduct discharge was ordered executed. 6. On 14 November 2003, the applicant was discharged accordingly. His service was characterized as bad conduct under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV. He completed 4 years, 9 months, and 4 days of net active service this period. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * Parachutist Badge * Dates of Time Lost During this Period: 20010314-20010926 (197 days of confinement) 7. The applicant provides four letters/character references attesting to his character as a friend, coworker, and an employee. 8. The applicant states since his discharge he has been living a straight and honorable life. His record shows he enlisted at the age of 17 years old, he was convicted by general court-martial for being derelict, making a false official statement, stealing, and forgery, and he had 197 days lost due to confinement. The applicant served 57 months and 4 days of his 48 months contractual obligation. 9. AR 635-200 (Personnel Separations – Enlisted Personnel) states a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 11. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD policy for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the frequency and nature of his misconduct and whether to apply clemency. The Board considered the post-service letters of reference provided by the applicant, but determined the evidence was insufficient to overcome the serious nature of his misconduct. The Board determined to not grant clemency and that the character of service the applicant received at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found the 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. 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 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. Chapter 3 (Character of Service/Description of Separation), provided that a discharge certificate or certificate of release from active duty will be given to each Soldier of the Army upon discharge from the Service or release from active duty. Section IV (Dishonorable and Bad Conduct Discharge) stated an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. b. 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. c. 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. d. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. 3. Title 10, section 1552 provides 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. 4. 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. ABCMR Record of Proceedings (cont) AR20180015058 4 1