ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20190002289 APPLICANT REQUESTS: The applicant request his bad conduct discharge (BCD) be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Review of Discharge from the Armed Forces) * Statement 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 thinks his he should have his discharge changed because one little incident shouldn’t be held against him with all that he’s accomplished in the military. Since he’s been out of the military, he has nothing to do with any other activities. He believes the accounts of accomplishments he’s had in fighting the war, should be able to get his discharge changed. 3. On 27 June 1991, after 13 years, 7 months, and 24 days of continuous honorable service, the applicant re-enlisted in the Regular Army for four years as a Staff Sergeant (SSG/E6), at the age of 30. 4. He underwent a general court-martial (GCMO) and was found guilty for: * On 1 May 1994, rape * On 1 September 1992, assault consummated by a battery * On 25 November 1993, assault consummated by a battery * On 10 January 1994, assault consummated by a battery * On 22 and 24 January 1994, assault consummated by a battery * On 1 May 1994, assault consummated by a battery; assault by throwing her; and assault with a force likely to produce death or grievous bodily harm * On 4 July 1993, assault with a force likely to produce death or grievous bodily harm * On 1 May 1994, wrongfully communicate a threat 5. On 23 February 1995, the sentence was adjudged and the applicant was sentenced to reduction to Private (E1), forfeiture of all pay, confinement for 15 years, and given a dishonorable discharge. SPCMO No. 104, shows the applicant appealed his sentence to the U.S. Court of Criminal Appeals on 29 October 1996; the sentence was affirmed on 18 July 1995 with confinement in excess of five years and one day and forfeiture of pay were suspended for five years provided the applicant initiated and maintained an allotment for all pay and allowances, less mandatory deductions, to his current wife, , with provisions for automatic remission; and reduction to the grade of Private (E1) had been affirmed. The dishonorable discharge was executed. 6. On 16 October 1998, he was discharged accordingly; his DD Form 214 shows he completed 17 years, 8 months, 22 days net active service; retained in service 1,234 days for convenience of the government and was awarded or authorized the: * Noncommissioned Officer (NCO) Professional Development Ribbon (LVL 3) * Good Conduct Medal (4th AWD) * National Defense Service Medal * Meritorious Service Medal * Army Commendation Medal * Southwest Asia Service Medal with 3 Bronze Service Stars * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal (SA) (K) * Mechanic Badge 7. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 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 states he believes his discharge should be upgraded because of all his accomplishments in the military and one little incident shouldn’t be held against him. His records show he served honorably for over 13 years and then convicted by a general court-martial for rape, assault and communicating a threat. The highest grade he held was Sergeant First Class (SFC). 10. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense 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 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 statement of continuous honorable service on his DD Form 214, the reason for his separation and whether to apply clemency. The Board found no evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence to overcome the severe nature of the misconduct and determined that the applicant’s character of service upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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. 10/17/2019 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3, section IV (Ensure to cite the correct paragraph bases on separation date), established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. 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. 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 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. 5. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. (2) 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. 6. 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//