BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20180016880 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge, or in the alternative, to an uncharacterized 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), dated 20 November 2018, with continuation page * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), undated * DA Form 2-1 (Personal Qualification Record – Part II) * Special Court-Martial Order Number 79, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma on 13 June 2002 * Orders Number 218-28, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma on 6 August 2002 * DD Form 214 (Certificate of Release or Discharge From Active Duty), for the period ending 19 August 2002 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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: a. When he was discharged, he was experiencing significant personal and family problems. He found out his father was going to die from lung cancer in August 1998. He also found out the mother of his child, who was his fiancé at the time, was cheating on him. He was given Paxil for depression, which he still takes. When he was stationed in El Paso, Texas, a fellow Soldier stole checks from him, for which he was given a general discharge. He thought if he did the same thing, he would get sent home too. He realizes that was a big mistake, which he regrets every day of his life. But to make matters worse, he decided to go absent without leave (AWOL) after his leave was revoked. He felt his father wasn't going to live long enough for him (his only son) to see him before he died. Since he already had plane tickets to go home, he chose to go home to see his father, expecting it to be the last time he ever saw him. He was still planning to return to his unit after Christmas. His mother called his unit and explained what was going on and he agreed to return sooner. b. Additionally, his son's mother was accusing him of raping her in 1996. She was threatening to take his son away and call the police if he didn't give her more money, even though he was paying her $200 per month and his parents were making sure his son's needs were met. She reported him to the police in 2015. c. Dealing with these things, he made the worst decision of his life as a young man, which he has never gotten over. He thought he received an under other than honorable conditions (UOTHC) discharge. He regrets his decision and hopes he can get an upgrade so he can work for the Department of Veterans Affairs (VA), do some service for his country, and be buried in the cemetery with his father. 3. The applicant enlisted in the Regular Army on 8 November 1997. 4. Before a special court-martial on or about 12 January 1999, at Wurzburg, Germany, the applicant was tried and convicted of the following violations of the Uniform Code of Military Justice (UCMJ). a. One specification of violating Article 80; specifically, attempting to steal $120.00 from another Soldier, between 1 August 1994 and 30 September 1998. b. One specification of violating Article 86; specifically, absenting himself from his unit without authority, from on or about 15 December through on or about 22 December 1998. c. Three specifications of violating Article 121; specifically, stealing $200.00; $280.00; and four personal checks from another Soldier, between on or about 1 August and 30 September 1998. d. Three specifications of violating Article 123; specifically, by falsely making another Soldier's signature as an endorsement to a certain check, with intent to defraud, between on or about 1 August and 30 September 1998. 5. The applicant's sentence included confinement for 135 days; reduction to the rank/grade of private/E-1; and separation from service with a BCD. The sentence was approved on 22 January 1999 and, except for the part of the sentence extending to a BCD, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 6. Special Court-Martial Order Number 79, issued by the Headquarters, U.S. Army Field Artillery Center and Fort Sill, Oklahoma on 13 June 2002, noted that his sentence had been affirmed and ordered his BCD duly executed. 7. The applicant was discharged on 19 August 2002, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, section IV, as the results of a court-martial sentence. His service was characterized as bad conduct. 8. 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. 9. The applicant provides extracts of his service records. 10. The Board should consider the applicant's requests in accordance with the published equity, injustice, or clemency determination 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 and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome his misconduct and the applicant provided no evidence of post-service achievements or 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 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 635-200 sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-10 provides that 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. b. 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. c. 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. 3. 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. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20180016880 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016880 6 ABCMR Record of Proceedings (cont) AR20180016880 4