ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20180015216 APPLICANT REQUESTS: The applicant requests upgrade of his bad conduct discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application to the Army Discharge Review Board). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 has three issues: improper counseling; improper handling of the process; and the fact he was very young, naive, and heading in the wrong direction. He further asserts, at the time, he made decisions that have since affected him, his parents, and his children. Since his discharge, he has greatly matured and become an avid member of society; he volunteers and assists local law enforcement. He requests this upgrade to further his career in the private and public sectors; he wishes to position himself for a career where retirement is foreseeable. 3. The applicant's service records show: a. As part of his enlistment processing, the applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States). On 26 April 2004, his parents affirmed their consent to allow the applicant's enlistment. He enlisted into the Regular Army on 8 June 2004 at 17 years of age for a 4-year term. Following initial training, orders assigned him to Schofield Barracks, HI; he arrived on 29 November 2004. His leadership promoted him to private first class (PFC/E-3), effective 1 April 2005. b. On 27 March 2006, his commander placed him in pre-trial confinement, based on pending violations of the Uniform Code of Military Justice (UCMJ); the applicant was 18 years old. c. On 31 May 2006, a general court-martial convicted him of numerous violations of the UCMJ. (1) He was convicted of the following UCMJ violations: * Article 92 (Failing to Obey a Lawful General Order) – failing to obey command regulations by: not registering two firearms, transporting a firearm, and storing a firearm in the barracks; and by wrongfully consuming alcohol on a military installation while under the age of 21 * Article 95 (Resisting Apprehension) – wrongfully fleeing apprehension by an Armed Forces policeman * Article 111 (Drunken Driving) – operating a vehicle near the military reservation in a reckless manner * Article 112a (Wrongful Possession of a Controlled Substance) – wrongfully distributing, possessing, and using marijuana * Article 128 (Assault) – wrongfully assaulting another Soldier by pushing the Soldier on the chest with his hands * Article 134 (General Article – Fleeing the Scene of an Accident) – after being involved in a vehicular accident, unlawfully leaving the accident scene without making his identity known (2) The court sentenced him to confinement for 2 years, forfeiture of all pay and allowances, reduction from PFC/E-3 to private/E-1, and a bad conduct discharge. He was placed in confinement that same date, and, effective 30 June 2006, was transferred to the confinement facility at Fort Lewis, WA. (3) On 8 November 2006, the general court-martial convening authority (GCMCA) approved only so much of the sentence that allowed for forfeiture of all pay and allowances, reduction from PFC/E-3 to private/E-1, and confinement for 15 months. The GCMCA further credited the applicant with 70 days of confinement. Except for the bad conduct discharge, the GCMCA ordered the sentence's execution. d. At some point before 30 July 2009, the applicant's appellate review was completed. On 30 July 2009, a general court-martial order (GCMO) announced the applicant's sentence was affirmed; the GCMO ordered the execution of the applicant's bad conduct discharge and he was discharged accordingly on 23 September 2009. e. His DD Form 214 (Certificate of Release or Discharge) showed he completed his 4-year enlistment; he served 4 years, 5 months, and 26 days, with lost time from 20060531 to 20070320. He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and the Overseas Service Ribbon. 4. The applicant asserts, in effect, his leadership did not properly counsel him and the process was improperly handled; nonetheless, since his discharge, he has contributed to his community and assists local law enforcement. He seeks to improve his career and retirement opportunities. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to re-adjudicate or set aside a conviction, but can only change the severity of the sentence imposed. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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 ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 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 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. 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) AR20180015216 4 1