IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190010170 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20160015013 on 11 March 2019. Specifically, he requests: * his bad conduct discharged (BCD) be upgraded to an under other than honorable conditions (UOTHC) discharge * a change in the stated reason for separation * correction of his DD Form 214 at items 8a (Last Duty Assignment), 8b (Station Where Separated), 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), and 14 (Military Education) 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), dated 10 June 2019, with personal statement 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 Docket Number AR20160015013 on 11 March 2019. 2. The applicant states he was told during his court-martial that after a year, his BCD would automatically be upgraded to "other than honorable." He is requesting this reconsideration to allow him to obtain some medical benefits from the Department of Veterans Affairs (VA) and to assist him obtaining housing and transportation assistance. 3. The applicant contents he was told his BCD would be automatically upgraded after a year. This contention was not previously addressed and constitutes new argument. 4. The applicant enlisted in the Regular Army on 1 September 1999. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 12B (Combat Engineer). Following his completion of initial entry training, he was reassigned to Fort Bragg, North Carolina; he was further assigned to Company C, 27th Engineer Battalion (Combat) (Airborne), 20th Engineer Brigade (Airborne). 5. Before a general court-martial on or about 12 September 2000, at Fort Bragg, North Carolina, the applicant was found guilty of: * wrongful appropriation of a vehicle, of a value of over $100.00, the property of another Soldier, on or about 31 May 2000 * absenting himself without authority from his unit, from on or about 31 May 2000 until on or about 6 June 2000 * wrongfully using marijuana, between on or about 6 May 2000 and on or about 6 June 2000 * wrongfully using cocaine, between on or about 3 June 2000 and on or about 6 June 2000 6. The applicant was sentenced to confinement for four months, forfeiture of all pay and allowances, and discharge from the service with a BCD. The convening authority approved the findings and sentence and directed the sentence, except for the BCD, to be executed. He was confined at Fort Knox disciplinary barracks and his record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 7. The U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 27 March 2001. 8. General Order Number 248, issued by Headquarters, U.S. Army Armor Center and Fort Knox on 16 November 2001, directed that the sentence to a bad conduct discharge, confinement for four months, forfeiture of all pay and allowances, having been finally affirmed, that portion of the sentence pertaining to confinement having been served, and all else having been complied with, the BCD would be executed. 9. The applicant was discharged on 3 April 2002, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as bad conduct. 10. The applicant requested a review and upgrade of his service characterization. The ABCMR considered his petition on 11 March 2019 but denied his request, determining there was insufficient evidence to grant relief. The Board agreed the characterization received due to misconduct was not unjust. a. Included in that review was an Army Review Boards Agency (ARBA) medical advisor/psychologist advisory opinion. The advisory found available documentation did not reveal evidence of a mental health condition that was sufficient to change the character of the discharge in his case. A nexus between the applicant's misconduct and his mental health was not discovered. The ABCMR also considered an upgrade under the Under Secretary of Defense for Personnel and Readiness guidance that was issued to Military Discharge Review Board (DRB)s and Boards for Correction of Military/Naval Records (BCM/NR)s on 25 July 2018, regarding equity, injustice, or clemency determinations. b. This review resulted in administrative corrections to his DD Form 214; specifically, a DD Form 215 (Correction of the DD Form 214) was issued to show he completed the basic airborne course and was awarded the Parachutist Badge. 11. The applicant has not provided and the record does not contain any evidence that he was told his BCD would automatically be upgraded after one year. Further, there is not now nor has there ever been a provision under law or regulation for such an action. Additionally, his record contains no evidence to support his contention that he was assigned to a Special Forces element or that he was trained in or performed duties involving demolition reconnaissance. 12. The Board should consider the applicant's statement 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 record 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 and the reason for his separation. The Board considered the previous case review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and the reason for separation the applicant received upon discharge was not in error or unjust. The Board found there was insufficient evidence in the records or provided by the applicant to warrant correction of his DD Form 214 at items 8a (Last Duty Assignment), 8b (Station Where Separated), 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), and 14 (Military Education). 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 to amend the decision of the ABCMR set forth in Docket Number AR20160015013 on 11 March 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. 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. Further, it states reconsideration of a Board decision will be made when additional evidence or other matter including, but not limited to factual allegations or arguments, that were not previously available to the Board has been submitted. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. Chapter 3 provides that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. An appellate review was required to be completed and the affirmed sentence ordered duly executed. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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) AR20190010170 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010170 5 ABCMR Record of Proceedings (cont) AR20190010170 4