IN THE CASE OF: BOARD DATE: 15 October 2020 DOCKET NUMBER: AR20200002272 APPLICANT REQUESTS: In effect, that his dishonorable discharge be upgraded to an under honorable conditions (general) discharge or an honorable 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 20 November 2019, with personal statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 June 1989 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 provides a statement, dated 7 August 2019, in which he notes: a. He enlisted in the U.S. Army on 13 November 1986, at the age of 17 years, and was put in the delayed entry program. He acquired no other disciplinary actions during his brief enlistment prior to his departure by way of court martial. The court martial he received was a result of his bad judgment, for he failed to maintain a vehicle left to him by another Soldier, his bunkmate His bunkmate entrusted him with his vehicle while he was away on assignments for weeks. The vehicle had no oil and broke down while he was in an unfamiliar city in Germany. He had no cash to fix the car himself, and he found checkbook in his glove box. He used the checks to get his car towed and fixed prior to his return. He was young and had no idea that this would result in forgery and charges being filed, which subsequently led to his discharge from the military. b. He knows that this has been some time ago; however, the embarrassment and shame he has felt has been reoccurring with every application that requires its inclusion. It has been over 30 years since this incident and he has learned his lesson, which has shaped him into a more responsible and contributing human being. This blemish has caused a repetitive, increased sadness as he has matured. He now has a nine year old son who has made clearing his past mistakes even more necessary as he would like for his son to be proud of the man he calls father. He cannot revisit the time in his life and make amends to the Soldier in his unit or the country for the wrong he did. He would like to be given the opportunity, now to express his deep regret for the trouble he caused to his fellow Soldier and the great institution of the United States. c. He is requesting the mercy of his country with hopes that his discharge status can be upgraded to a status that will allow him the opportunity to share his military history without shame. He prays that the court martial, punishment rendered, and time that has elapsed will suffice in granting his request. He would also like to render his apologies to his country for the shameful way he ended his military career. Please take this into consideration and grant him a discharge that will allow him to continue to strive for greatness and forgive the ignorant decisions made as an immature recruit. He thanks everyone in advance for their time and consideration in this matter. He is looking forward to a response and will accept any decision made. 3. The applicant enlisted in the Regular Army on 13 November 1987. 4. Before a general court-martial on or about 7 October 1988, in the Federal Republic of Germany, the applicant was convicted of: a. Stealing $300.00, lawful currency of the U.S., the property of Merchants National Bank and Trust Company, on or about 17 June 1988, 18 June 1988, 19 June 1988 and 22 June 1988, at Kaiserslautern, Germany. b. Stealing a checkbook, of some value, the property of another Soldier, on or about mid-July 1988, at Kaiserslautern, Germany. c. With intent to defraud, falsely make in its entirety a check, being check number 114 drawn upon the account of another Soldier, at Merchants National Bank and Trust Company, on or about 25 July 1988, at Kaiserslautern, Germany, in words and figures as follows, to wit: $97.50, which said check would, if genuine, apparently operate to the legal harm of another. d. With intent to defraud, falsely make in its entirety a check, being check number 115 drawn upon the account of another Soldier, at Merchants National Bank and Trust Company, on or about 28 July 1988, at Kaiserslautern, Germany, in words and figures as follows, to wit: $92.50, which said check would, if genuine, apparently operate to the legal harm of another. 5. The applicant's sentence included reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for three years, and to be dishonorably discharged from the service. His sentence was approved on 3 November 1988 and, except for that portion 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 sentence on 21 February 1989. 7. The applicant underwent a mental status evaluation on 24 March 1989. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings and he was psychiatrically cleared for any administrative action deemed appropriate by his Command. 8. General Court-Martial Order Number 547, issued by U.S. Army Correctional Activity, Fort Riley, Kansas on 14 June 1989, noted that the applicant’s sentence had been affirmed and ordered the dishonorable discharge duly executed. 9. The applicant was discharged on 23 June 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service characterized as dishonorable. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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 Board should consider the applicant's statement, provided evidence, and the entirety of his record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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. 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, in effect at the time, 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. c. Chapter 3 provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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 (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018 [Wilkie Memorandum], 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) AR20200002272 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002272 6 ABCMR Record of Proceedings (cont) AR20200002272 5