IN THE CASE OF: BOARD DATE: 19 May 2021 DOCKET NUMBER: AR20210005376 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable condition (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 26 June 2020 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 26 June 2020 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, in effect, he wants to receive medical benefits from the Department of Veterans Affairs (VA) due to medical issues from military service. He wants to be able to provide medical benefits for his family from the VA. He would like to be considered for an upgrade to his discharge for VA Benefits, or to reenlist in the military. He wants to serve his country the way he always wanted to. He did not know how or what to do regarding the character of his discharge until he did research. He was not given any information on what to do prior to or after his discharge. 3. The applicant enlisted in the Regular Army on 12 February 1999. 4. Before a general court-martial on or about 29 October 2003, at Schofield Barracks, Hawaii, the applicant was tried and convicted of the following violations of the Uniform Code of Military Justice (UCMJ): a. One specification of violating Article 81; specifically, conspiring with another Soldier to commit an offense of larceny of personal property, of a value of over $500, the property of another Soldier, and in order to effect the object of the conspiracy the said individuals did steal the property, between on or about 15 November 2002 and 27 December 2002. b. Two specification of violating Article 107; specifically, making false official statements to Military Police (MP) and a Noncommissioned Officer (NCO) with the intent to deceive, at Wheeler Army Airfield (WAAF), Hawaii, as follows: * on or about 27 December 2002, the applicant stated "I don’t know who stole SPC H’s stuff" or words to that effect, which statement was totally false, and was then known by the accused to be a false statement * on or about 27 December 2003, the applicant stated that "he SPC T., did not have any involvement in the missing items,” or words to that effect, which statement was totally false, and was then known by the accused to be so false c. Two specifications of violating Article 121; as follows: * between, on or about 15 November 2002 and 27 December 2002, the applicant stole two DVD players, a VCR player, two televisions, a wide screen television, dresser, entertainment center, and twin beds and a frame, of a value of over $500, the property of another Soldier * between, on or about 15 November 2001 and 27 December 2002, the applicant stole government issued TA-50, military property, of a value of under $500, the property of the United States 5. The applicant’s sentence included reduction to the rank/grade of private/E-1, confinement for 120 days, and separation from service with a BCD. The sentence was approved on 9 August 2004 and the record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 6. General Court-Martial Order Number 3, issued by Department of the Army, 8th Sustainment Command, Schofield Barracks, Hawaii on 29 September 2006, noted that the sentence in the applicant's court-martial had been affirmed and ordered his BCD duly executed. 7. Orders Number 029-0697, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK on 29 January 2007, ordered the applicant’s discharge. 8. The applicant was discharged on 7 February 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as a result of court-martial, with his service characterized as bad conduct. His DD Form 214 shows he was awarded the Army Good Conduct Medal. 9. 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. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The ABCMR 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. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh 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 XXX XXX XX 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. c. Chapter 3 provides that an enlisted person will 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 Service Discharge Review Boards and Service 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) AR20210005376 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005376 5 ABCMR Record of Proceedings (cont) AR20210005376 4