ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190005897 APPLICANT REQUESTS: The 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) * Continuation Statement * 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 (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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090012575 on 12 January 2010. 3. The applicant states in an application to this Board, in effect, that his discharge is inequitable because it was based on one isolated incident in 48 months of service with no other adverse action. His first period of enlistment was served honorably. He states he is sorry for his past actions. 4. The applicant indicates in a personal statement that he was a young man and made some bad choices that caused him to lose his military career. He sincerely regrets the choices that he made, the things that he did, and the circumstances that led to false accusations of other actions. He understands that certain things will never be changed, but he requests forgiveness. He completed 4 years of honorable service and reenlisted for another 4 years. He is a Desert Storm veteran. He shot Top Gun under Commander, Robert Abrams, now a four star General. He believes the general would still consider him an honorable Soldier. He pleads with the Board to upgrade his discharge. 5. The applicant completed an honorable period of Regular Army (RA) service from 29 September 1987 to 4 July 1991 during this period of service, he served in Southwest Asia from 27 September 1990 to 11 April 1991. 6. He reenlisted in the RA on 5 July 1991, in the rank of specialist four/E-4. He held military occupational specialty 19K (Armor Crewman). 7. A Record of Proceedings under Article 15, Uniform Code of Military Justice, show he received nonjudicial punishment on 25 November 1991, for altering a sick slip by changing the date to show “13 Nov 91.” His punishment consisted of reduction to the rank of private/E-1, a forfeiture of pay, and extra duty (suspended until 26 May 1992). 8. On 28 December 1991, he failed to go to his appointed place of duty at the time prescribed and the above punishment was vacated. 9. On 7 February 1992, the applicant was charged with committing the following offenses on: a. 21 January 1992: * intent to deceive by making a false statement, “that his wife was in an accident in Waco, TX” * breaking restriction * overindulgence in intoxicating liquor or drugs and was incapacitated for the proper performance of his duties b. 23 September 1991, larceny of six compact discs, of a value of less than $100, the property of another Soldier. 10. The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court- martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). 11. The applicant’s commander and his intermediate commanders recommended denial of the applicant’s request for discharge under the provisions of chapter 10, AR 635-200. The approval authority referred the applicant’s charges to a special court- martial. 12. Special Court-Martial Order Number 26, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, confirms on 24 April 1992: a. The applicant was found guilty of the following offenses * making a false official statement * breaking restriction * larceny of six compact discs and video tape b. He was found not guilty of being incapacitated for duty due to drunkenness c. He was sentenced to a bad conduct discharge and 30 days in confinement 13. On 1 June 1994, the sentence having been affirmed pursuant to article 71(c), UCMJ, the bad conduct discharge was ordered executed. 14. On 7 December 1998, he was discharged under the provisions of chapter 3, AR 635-200, as a result of court-martial with a bad conduct discharge. The DD Form 214 he was issued shows: * (Net Active Service This Period), 11 years, 1 month, and 15 days * (Remarks) CONTINUOUS HONORABLE ACTIVE SERVICE 19870929- * 19910704 * (Narrative Reason for Separation) Court-Martial, Other * (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Kuwait Liberation Medal (Saudi Arabia), Kuwait Liberation Medal (Kuwait), Expert Marksmanship Qualification Badge (Pistol .45 Caliber), Marksman Marksmanship Qualification Badge Hand Grenade, Driver and Mechanic Badge (Driver-T/Driver-W)/Mechanic) 15. His service record shows he was convicted by a special court-martial of making a false official statement, breaking restriction, and larceny of six compact discs and video tape. He was issued a bad conduct discharge. 16. On 20 August 2000, the Army Discharge Review (ADRB) reviewed his discharge and determined he was properly and equitably discharged. As such, the ADRB denied his request to change the character and/or the reason for his discharge 17. Chapter 3, AR 635-200, in effect at the time, stated a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a special or general court- martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 18. 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. 19. The applicant contends, in effect, that his discharge is inequitable because it was based on one isolated incident in 48 months of service with no other adverse action. His first period of enlistment was served honorably. He states he is sorry for his past actions. He was young and he made some bad choices. He sincerely regrets the choices that he made, the things that he did, and the circumstances that led to false accusations of other actions. He completed 4 years of honorable service and reenlisted for another 4 years. He is a Desert Storm veteran. He shot Top Gun under Commander, Robert Abrams, now a four star General. He believes the general would still consider him an honorable Soldier. He pleads with the Board to upgrade his discharge. 20. 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 previous honorable service, his personal statement regarding his service, the frequency and nature of the misconduct, the charges he faced and whether to provide clemency. The Board found no mitigating factors for the misconduct that led to his separation and the applicant provided no evidence of post-service achievements or letters of reference in support of clemency. The Board majority did determine, based on the preponderance of evidence, that a punitive discharge was too harsh and that an upgrade to a non-punitive character of service was warranted. One Board member found insufficient evidence to determined that the character of service the applicant received at discharge was in error or unjust. 2. After reviewing the application and all supporting documents, the Board majority found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :x DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 24 (Character of Service) of his DD Form 214 for the period of service ending 7 December 1998 to show “Under other than honorable conditions”. 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 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 of that regulation provided, in pertinent part, that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of the appellate review and after such affirmed sentence has been 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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. 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. 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. ABCMR Record of Proceedings (cont) AR20190005897 6 1