IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20190009826 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions promulgated in Dockets Number AC90?09006 and AR2001060863, on 18 September 1991 and 19 November 2001, respectively. Specifically, he requests: * that he be exonerated of the court-martial charges and that his general court-martial (GCM) be dismissed and deleted from his record * that his BCD be upgraded to an honorable discharge * that he be granted a 20 year regular retirement 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) * 2 page personal statement * 2 pages of testimony from his court-martial * 5 pages of previously submitted dependent service medical records * 4 pages of previously submitted private medical records * 4 previously submitted letters of support * a 2000 Certificate of Ordination * a 2001 8 page letter to the United States Court of Appeals for the Armed Forces with their response * a 24 July 2007 statement submitted with a prior ABCMR review * 2 pages from the Manual of Courts?Martial related to perjury FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Dockets Number AC90?09006 and AR2001060863, on 18 September 1991 and 19 November 2001, respectively. 2. The applicant's request that he be exonerated of the charges and that his general court-martial (GCM) be dismissed and deleted from his record are new issues. 3. The applicant states: a. The Army committed perjury during his court-martial and refused to help him with his problem child. b. The Army took away his rights under the Constitution. He cites differences in military law versus civil law court proceedings related to the number of jurors and the fact that his trial was not heard by his peers (enlisted personnel) but by only commissioned officers. c. At the time of his GCM, there was a personnel drawdown in progress and he feels the Army was getting rid of senior enlisted to comply with the new policy. d. He served over 20 years including a tour in Vietnam and deserves to have the court-martial dismissed and thrown out, his rank restored, and he should be allowed to receive his 20-year retirement benefits. e. He asks why an officer can retire in lieu of court-martial but an enlisted man cannot, why the Army gets a free pass on perjury, and why no one is willing to look into the issue for him. 4. The applicant enlisted in the Regular Army on 4 October 1965, serving in Vietnam for one year. He executed immediate reenlistments on 16 April 1968, 16 April 1971, 14 April 1977, and 9 February 1983. He was issued DD Forms 214 for his first three enlistment periods, each showing his service was honorable. 5. The applicant was investigated for child abuse in July 1985. The record contains only limited portions of the investigation of record. It does include statements indicating that on 30 June 1985, a dependent medical record shows the applicant's daughter had not sustained permanent or serious injuries, but had swelling on her buttocks that was tender to the touch and there was massive bruising with further linear marks on the upper portion of the thighs, legs, and back. The investigator determined that there was sufficient justification to title the applicant for child abuse. 6. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 7. Before a GCM on or about 18 November 1985, at Fort Benning, Georgia, the applicant plead and was found guilty of assault consummated by battery on a child under the age of 16 and indecent assault on a child under the age of 16. The recommended sentence was forfeiture of all pay and allowances, confinement for four years, reduction to the lowest enlisted grade, and separation from service with a dishonorable discharge. 8. The GCM convening authority, on 5 February 1986, approved a reduced sentence of confinement for three years and separation from service with a BCD. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 9. The U.S. Army Court of Military Review corrected the findings to reflect an additional not guilty finding be changed to dismissed on motion of the government and the word "assault" in Charge II be changed to "acts." The Court affirmed the findings and sentence on 27 October 1986, as modified and approved by the convening authority. 10. The applicant appealed the court-martial and sentence to the U.S. Court of Military Appeals; however, it appears that Court declined to hear the case. 11. The applicant received a confinement discharge effective 28 August 1987. 12. The applicant was discharged on 28 August 1987. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11, as the result of a court- martial conviction. His service characterization was bad conduct. His DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he was credited with 20 years and 21 days of creditable active service * he had lost time from 20 October 1985 through 28 August 1987 * his personal awards included the Army Commendation Medal, Army Good Conduct Medal (6th Award), Meritorious Unit Commendation, and the Combat Infantryman Badge 13. 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. 14. The ABCMR denied the applicant's request for an upgrade of his BCD and entitlement to a 20 year retirement on 18 September 1991. 15. The ABCMR reconsidered the applicant's case on 19 November 2001, indicating that, in accordance with regulations in effect at that time, in such cases, the staff of the Board would review the request to determine if substantial relevant evidence had been submitted that showed fraud, mistake in law, mathematical miscalculation, manifest error, or if there existed substantial relevant new evidence discovered contemporaneously or within a short time after the Board's original decision. If the staff found such evidence, the case would be resubmitted to the Board. If no such evidence was found, the application would be returned to the applicant without action. More than one year had elapsed since the original consideration of his case and the staff of the Board had determined that the current application did not contain evidence that met the above criteria. 16. The applicant's contentions relate to evidentiary and procedural matters that were finally and conclusively adjudicated in the court-martial appellate process. 17. The Board should consider the applicant's entire statement and record 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 (circumstances regarding the period of AWOL), his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service or post-service mitigating factors to support a favorable 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. The Board noted that, by law, it is not empowered to exonerate any individual of court-martial charges or dismiss such charges. The Board 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. As noted above, the Board found insufficient evidence to support a favorable clemency determination in this case or to support a recommendation to correct the record to show the applicant is authorized retired pay based on his length of service. 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. REFERENCES: 1. 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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. b. Paragraph 3-7b provided 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. c. Paragraph 3-11 provided that a Soldier would be given a BCD/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. 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) AR20190009826 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009826 6 ABCMR Record of Proceedings (cont) AR20190009826 5