ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20180015476 APPLICANT REQUESTS: an upgrade of his discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states, in effect, he has served his time as a first time offender. He has learned from the poor decision he made early in life and now wants to better his life and career. Since his discharge, he has been a positive role model; therefore, he would like his time in service to be reconsidered for an upgrade to honorable. 2. A review of the applicant’s service record shows: a. The applicant enlisted in the Regular Army on 3 October 1990. b. On 27 September 1994, he was convicted by a general court-martial of one specification of conspiring to commit forgery, two specifications of larceny, six specifications of forgery, two specifications of making and uttering certain checks, two specifications of wrongfully and falsely altering a military identification card, and one specification of wrongfully soliciting another to commit larceny. The court sentenced him to be reduced to the grade of private/E-1, confined for 38 months, forfeiture of all pay and allowances, and discharged from the service with a dishonorable discharge. c. On 1 December 1994, the convening authority approved the sentence and, except for the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. d. b. On 13 April 1995, he was convicted by a general court-martial of one specification of falsely testifying. The court sentenced him to hard labor without confinement. a. e. On 19 July 1995, the United States Court of Criminal Appeals for the Armed Forces affirmed the findings of guilty and the sentence. f. After completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed. On 21 August 1995, U.S. Army Combined Arms Center and Fort Leavenworth, KS executed the final order. g. The applicant was discharged on 22 September 1995. His DD Form 214 shows he was discharged in the rank/grade of private/E-1, as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel): (1) He completed 3 years, 11 months and 17 days of active military service. (2) His service was characterized as dishonorable and he was assigned the separation code JJD. (3) Block 18 (Remarks) reflects the applicant was retained in service 355 days for convenience of the government per AR 635-200. 3. AR 635-200 states, a member will be given a dishonorable 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. 4. 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. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. 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 criminal nature of the misconduct which led to the applicant’s discharge, 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. 6/25/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel, as a result of court- martial. 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. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a dishonorable 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. 2. 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.