BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190012091 APPLICANT REQUESTS: * an upgrade of his dishonorable discharge to a general under honorable conditions discharge or an under than honorable conditions discharge (UOTHC) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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: a. He is making this request without legal assistance. He is sincere in his request. He entered the Army in the delayed entry program. He was a very lost and immature young man that thought the military would guide him to the right path. He successfully and honorably completed two to three years of service before straying off to commit his crime of larceny. To this day he is very ashamed of his actions, especially with a one year old and driving by Fort Polk, LA, daily. He requests a general discharge. He is truly sorry. b. He was sentenced to Fort Leavenworth, KS, for four years. He had perfect behavior while incarcerated and completed many self-improvement programs and he was released on parole. He successfully completed his sentence with good behavior. Him going through life with this on his shoulders is the worst sentence ever. He hopes things were different. He knows that the readers have never made such a serious mistake like this and asks them to take his advice and appreciate every successful day they have in the military. He cannot go back and fix the past; however, he can move forward. He now owns 13 travel agencies and is a successful business owner. He is a very successful man now and has learned from his past. He respectfully requests a general under honorable conditions discharge. 3. On 3 July 1991, at the age 18 years old, the applicant enlisted in the Regular Army for a term of 4 years. After completing his initial entry training, the applicant was assigned to an overseas assignment in Korea. 4. On 8 September 1992, the applicant was recommended for an Army Commendation Medal for Permanent Change of Station (PCS). His DA Form 638-1 (Recommendation for Award) proposed citation stated for meritorious service while serving as a driver and forward observer. His superb leadership and technical expertise significantly enhanced the combat readiness of his unit. Although his immediate commander recommended that the award be downgraded to an Army Achievement Medal, he stated that he strongly recommended approval of the award and the applicant was a hard worker and well deserving of a PCS award. 5. On 24 February 1994, the applicant was confined by civil authorities. On 31 March 1994, he was released from confinement and returned to duty. 6. On 3 March 1994, the applicant’s favorable actions were suspended, effective 28 February 1994, because he was pending adverse action. 7. On 24 June 1994, the applicant was convicted by general court-martial of 9 specifications of wrongfully destroying property over $100 and 9 specifications of larceny of personal property over $100. He was sentenced to a dishonorable discharge, total forfeiture of all pay and allowances, confinement for 4 years, and reduction to the grade of Private E1. He entered into a pretrial agreement with the convening authority to approve the sentence as adjudged, but that any confinement adjudged in excess of 48 months would be suspended for 1 year. He was credited with 32 days of presentence confinement towards his post-trial confinement. On 20 October 1994 the sentence was approved and, with the exception of the dishonorable discharge, ordered executed. 8. On 5 July 1994, the applicant was assigned to the Correctional Holding Detachment, Fort Leavenworth, KS. 9. U.S. Disciplinary Barracks combined Arms Center, Fort Leavenworth Memorandum, subject: Statement of Service, dated 22 June 1995 indicated that the applicant’s personnel file reflected he had 395 days from 3 July 1991 to present (22 June 1995). 10. On 25 August 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. On 1 December 1995, the applicant was placed on administrative parole. On 23 February 1996, the sentence having been finally affirmed, the dishonorable discharge was ordered executed. 11. On 15 March 1996, he was discharged accordingly. He was discharged with a dishonorable discharge. He completed 3 years and 20 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows: * He was awarded or authorized: * National Defense Service Medal * Army Achievement Medal * Army Service Ribbon * Overseas Service Ribbon * Separation Authority: Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10 * Narrative Reason for Separation: As a Result of Court-Martial-Other * Dates of Time Lost During This Period: Under Title 10, U.S. Code, section 972: 940228-940330 (confined by civil authorities – 31 days), 940624-950702 (military imprisonment – 374 days); after normal expiration term of service: 950703- 960314 (administrative parole – 256 days) 12. The applicant states, in part, he was a very lost and immature young man that thought the military would guide him to the right path. He successfully and honorably completed two to three years of service before straying off to commit his crime of larceny. His record shows he was 18 years old when he enlisted, he was convicted by general court-martial of 18 specifications of destruction or larceny of property. 13. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 14. Army Regulation (AR) 635-200 states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and a dishonorable discharge only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 15. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 16. In reaching its determination, the Board can consider the applicant’s petition and service 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, his record of service, his civil charges, the frequency and nature of his misconduct, the outcome of a court-martial and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided his statement, but no other 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 the applicant received upon separation was not in error or unjust. The Board concurred with the corrections in the Administrative Note(s) below. 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 : X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, except for the corrections stated in the Administrative Note(s) that follow, 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): A review of the applicant’s record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 March 1996 is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * M16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade First Class Marksmanship Qualification Badge 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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. 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. 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. Chapter 3 (Character of Service/Description of Separation) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and a dishonorable discharge only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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. 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012091 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012091 7 ABCMR Record of Proceedings (cont) AR20190012091 5