IN THE CASE OF: BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190009810 APPLICANT REQUESTS: The applicant requests his bad conduct discharge (BCD) be upgraded to either a general or honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of a DD Form 149 (Application for Correction of Military Record) * Three Letters of Recommendation 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 wants to be able to receive VA benefits, better education options to further his schooling in order to exceed in in career choices and options. 3. On 25 May 2000, the applicant enlisted in the Regular Army for three years at the age of 19. He completed initial entry training earning military occupational skill (MOS) 92A (Automated Logistics Specialist). His record is void of a personnel qualification record that provides specifics of his career history from the date of enlistment to 1 March 2003. 4. The applicant underwent a general courts-martial (GCM) and was found guilty for unlawfully entering the barracks room of another Soldier and indecent assault on or about 1 March 2003. 5. On 21 October 2003, the sentence was adjudged and the applicant was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, and to be confined for 33 months. GCMO No. 51, shows the applicant appealed his sentence to the U.S. Court of Criminal Appeals and on 19 September 2006; the sentence was affirmed and the BCD was executed. 6. On 24 December 2005, the applicant’s duty status changed from confined to military authorities to present for duty and on 18 May 2007, the applicant was discharged accordingly. His DD Form 214 shows he completed 4 years, 9 months, and 21 days net active service; he was retained on active duty for 295 days for the convenience of the government. 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’s record shows he completed initial entry training earning military occupational skill (MOS) 92A (Automated Logistics Specialist); he received the Army Service Ribbon and the National Defense Service Medal; he was convicted by a court- martial for entering the room of another Soldier and indecent assault. 10. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the nature of his misconduct and the reason for his separation by GCM where he was provided legal advice and representation. The GCM findings and sentence were appealed to the U.S. Court of Criminal Appeals which found no error or injustice in the applicant’s sentence of a BCD. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no post- service evidence 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 correct and just. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 (Enusre 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. 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) AR20190009810 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009810 5 ABCMR Record of Proceedings (cont) AR20190009810 3