ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190002926 APPLICANT REQUESTS: His dishonorable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) 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 he was a drill sergeant on his third enlistment with an excellent duty record when he was unfairly discharged. His record of nonjudicial punishment (NJP), under Article 15 of the Uniform Code of Military Justice (UCMJ), shows he was disciplined only for minor isolated offenses. Plus, the military used evidence that was thrown out by the court in the State of Georgia. It has been 24 years since his discharge. 3. The applicant enlisted in the Regular Army on 21 April 1983. His records confirm he reenlisted in the Regular Army on 25 October 1985, 4 April 1990, 3 March 1992, and 16 May 1994. 4. The record contains a reference to a Letter of Reprimand (LOR) that was transferred to the restricted folder of the applicant's official military personnel file in the 1993 timeframe; however, the available records do not include any other information regarding this LOR. 5. The applicant was selected for separation under the Qualitative Management Program in April of 1993. He successfully appealed his separation at that time. 6. Court-martial charges were preferred against the applicant for several violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. The available record does not contain any specific information related to the court-martial charges. 7. General Court-Martial Order Number 18, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, Georgia on 9 December 1994, shows the applicant (a staff sergeant) was tried before a general court-martial, on or about 30 August 1994, and was found guilty of: * cruelty and maltreatment of a subordinate, between 15 March and 15 April 1993 * assault consummated by battery (four specifications), between 15 March and 15 April 1993, on or about 7 July 1993, on or about 7 January 1994, and on or about 16 May 1994 * adultery, between 1 March and 30 April 1993 * indecent assault (two specifications), on or about 7 July 1993 and on or about 7 January 1994 * obstruction of justice, on or about 10 February 1994 * disobeying a commissioned officer, on or about 16 May 1994 8. The applicant was sentenced to confinement for 10 years, reduction to the rank/grade of private (PVT)/E-1, forfeiture of all pay and allowances, and separation from service with a dishonorable discharge. 9. The court-martial convening authority approved the findings of guilt and sentence on 30 August 1994. He directed that, except for that portion extending to the dishonorable discharge, the sentence be executed. He also suspended the period of confinement in excess of 4 years and credited the applicant with 179 days for time served. The record of trail was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 10. The U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence imposed on 25 October 1995. 11. A U.S. Disciplinary Barracks, Combined Arms Center and Fort Leavenworth Memorandum, dated 12 March 1996, shows five enlistment periods; four with honorable characterizations of service and one with dishonorable. 12. General Court-Martial Order Number 36, issued by the U.S. Disciplinary Barracks, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas on 26 March 1996, states that with Article 71(c) having been complied with, the dishonorable discharge was to be duly executed. 13. The applicant was discharged on 3 May 1996. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, as a result of court-martial and his service characterization was dishonorable. His DD Form 214 further shows * discharge in the rank/grade of private/E-1 * 11 years and 27 days of net active service * award of the following personal awards for valor or meritorious service: * Army Commendation Medal * Army Achievement Medal (7th award) * Army Good Conduct Medal (3rd award) * continuous honorable service from 830421 – 940515 * immediate reenlistments this period 830421?851025, 851026?900403, and 900404?920302 * retention in service for 428 days * lost time from 940517?960503 14. The Army Clemency and Parole Board denied the applicant's request on eight occasions between 1998 and 2006. 15. The available record does not contain any evidence of any NJPs during applicant's total period of service. It also does not contain any information in regards to the State of Georgia trial that the applicant referenced in his statement. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity, or any mitigating factors for the serious misconduct that resulted in the discharge. The Board agreed that the applicant’s discharge characterization is appropriate. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides 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 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge/dishonorable discharge only pursuant 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 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. 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) AR20190002926 5 1