IN THE CASE OF: BOARD DATE: 15 June 2020 DOCKET NUMBER: AR20200000126 APPLICANT REQUESTS: His dishonorable discharge be upgraded to an under honorable conditions (general) discharge. 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 18 October 2019 * General Court Martial Order #5, issued by Department of the Army, United States Army Garrison, Fort Huachuca, Arizona on 14 March 1988 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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. The applicant states he is not sure if the character of his discharge should be changed based on the corrected action of the General Court Martial Order issued on 14 March 1988. 3. The applicant enlisted in the Regular Army on 12 January 1975. He reenlisted on 26 September 1979 and again on 21 October 1983. 4. The applicant was promoted to the rank/grade of staff sergeant/E-6 effective 7 April 1987. 5. Before a general court-martial on or about 20 November 1987, at Fort Huachuca, Arizona, the applicant was convicted of premeditated murder; specifically, shooting his wife in the chest with a pistol, on or about 17 July 1987. His sentence included confinement for life, reduction to the grade of E-1, forfeiture of all pay and allowances, and separation from service with a dishonorable discharge. His sentence was approved on 14 March 1988, and except for that part of the sentence extending to the dishonorable discharge, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's case on 17 November 1989. 7. The U.S. Court of Military Appeals affirmed the findings and sentence in the applicant's case on 12 September 1990. 8. General Court-Martial Order, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS on March, noted that the applicant's sentence had been finally affirmed and ordered his dishonorable discharge duly executed, with continued confinement at the U.S. Disciplinary Barracks. 9. The applicant was discharged on 12 April 1991, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as the results of a court-martial sentence. His service was characterized as dishonorable. His DD Form 214 shows he was awarded or authorized the Army Achievement Medal and three Army Good Conduct Medals. 10. 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. 11. The applicant provides General Court Martial Order, issued by Department of the Army, United States Army Garrison, Fort Huachuca, Arizona on 14 March, which approved the sentence in his case except that portion pertaining to his dishonorable discharge. Such language is common in less than honorable discharge cases and is consistent with a sentence being forwarded for appellate review. The record of trial was forwarded to the U.S. Army Court of Military Review, which then affirmed the sentence in its entirety, including the dishonorable discharge. Additionally, his case was reviewed by the U.S. Court of Military Appeals, which further affirmed the findings and sentence in his case. 12. The Board should consider the applicant's requests, 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, the frequency and nature of his misconduct, the resulting court-martial, the appellate review and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the serious 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 the applicant received upon separation was not in error or unjust. 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, 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 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 set forth the basic authority for the separation of enlisted personnel: a. 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. b. 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. 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) AR20200000126 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000126 6 ABCMR Record of Proceedings (cont) AR20200000126 4