ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20180016585 APPLICANT REQUESTS: An upgrade of his characterization of service from bad conduct to general, under honorable conditions. 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 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 he is making this request because he would like to pursue a career in law enforcement. He is passionate about serving and protecting the citizens of his community, but the characterization of service is holding him back. 3. On 16 September 1998, the applicant enlisted in the Regular Army for 4 years. His record is void of a completed enlisted qualification record to provide information on his career specifics. His records provides: a. On 3 July 2002 his duty status was changed from "present for duty" to "confined military authorities." The applicant was confined in for sentenced confinement. b. Orders dated shows he was assigned to Personnel Control Facility (with a report date of. c. On 10 October 2002 his duty status changed from "confined military authorities" to "present for duty." He was released from confinement. 4. General Court-Martial Order (GCMO) Number issued by Headquarters Fourth Infantry Division (Mechanized), dated October, shows court-martial charges were preferred against the applicant for the following offenses, he pled guilty, and was found guilty of: * Larceny of U.S. Currency of a value of about $250 from specialist four (SPC) M on or about 26 February 2001 * Larceny of U.S. Currency of a value of about $732.90 from a SPC M on or about 28 February 2001 * Larceny of U.S. Currency of a value of about $68.95 from SPC M on or about 3 March 2001 * Larceny of U.S. Currency of a value of about $199.20 from SPC M on or about 6 March 2001 * Larceny of U.S. Currency of a value of about $300.80 from SPC M on or about 6 March 2001 * False Swearing on or about 20 April 2001 5. On 3 July 2002, the sentence was adjudged. The court sentenced him to confinement for 4 months, a fine of $2,000, reduction to the rank/grade of private/E-1, a total forfeiture of all pay and allowances, and a bad conduct discharge (BCD). His sentence was approved and executed except for that portion pertaining to the BCD. 6. On 3 March 2003, the U.S. Court of Criminal Appeals for the Armed Forces denied the applicant's petition for a grant of review. 7. General Court-Martial Order dated, shows that portion of the sentence extending to confinement had been served. Article 71 had been complied with and the BCD was ordered executed. 8. On 28 November 2003, he was discharged under the provisions of chapter 3, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), as a result of court-martial with a BCD. His DD Form 214 also shows in: * (Net Active Service This Period): 0004 011 04 * (Foreign Service): 0000 00 00 * (Separation Authority): AR 635-200, Chapter 3, Section IV * Character of Service): Bad Conduct * (Narrative Reason for Separation): Court-Martial, Other * Dates of Time Lost During This Period): 20020703-20021009 9. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides that a Soldier will be given a BCD 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. 10. 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. 11. The applicant contends he desires an upgrade of his character of service so that he may pursue a career in law enforcement. His service record shows he was convicted of numerous charges that involved stealing U.S. Currency from another Soldier and false swearing, as such, he was discharged due to a court adjudging a BCD. He completed a total of 4 years, 11 months, and 4 days of creditable military service with 97 days of lost time. 12. 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 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 frequency and nature of his misconduct, the results of a court-martial and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements of letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. A Soldier will be given a BCD 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. b. 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. 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. 3. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016585 4 1