IN THE CASE OF: BOARD DATE: 15 April 2021 DOCKET NUMBER: AR20210005947 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of 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 went to jump master school during his second enlistment. His first enlistment was honorable. He found a .45 caliber handgun after landing on a drop zone. He immediately showed it to everyone and said "look what I found," and then placed it in his wall locker for safe keeping. He had forgotten to turn it in because he was preparing to go to the Noncommissioned Officer (NCO) School. He had no intention of keeping it. Why would he turn it in if he planned on keeping it? He went to the NCO Course after placing it in his wall locker and forgot about it. When he came back, he discovered it was not turned in, so he took it upon himself to do so. No other NCOs turned it in. Staff Sergeant J_ F_ and Sergeant First Class B_ did not turn it in and they knew it was there. b. The NCOs had a grudge against him. They told him that he was getting promoted too fast. He believes they were trying to get him into trouble instead of doing what was right and turning it in. There were rumors and accusations being spread by his male dorm neighbor that the applicant raped him at a time he was he was on temporary duty. He hired a lawyer and it was squashed (slang for settled or ended). He firmly believes this event contributed to court-martial proceedings because the accuser's boss was the applicant's commander. The commander believed he was guilty and because the commander could not kick him out of the service for the rape accusations, he saw the gun issue as an opportunity to kick him out of the Army. He does not know if an application was submitted previously on his behalf. 3. On 2 October 1989, the applicant enlisted in the Regular Army for a term of 4 years in the rank/grade of Specialist/E-4. He held the military occupational specialty 93F (Field Artillery Meteorological Crewmember). On 26 February 1993, he reenlisted in the Army for a term of 3 years. 4. On 1 October 1993, he was promoted to Sergeant/E-5. 5. His record shows he was evaluated by DA Form 2166-7 (NCO Evaluation Report) on two occasions, for periods from: a. October 1993 – September 1994: (1) The rater answered yes to all questions regarding the applicant's values and NCO responsibilities. He commented, among other comments, the applicant was hard charging, a natural leader, and a team builder; he had unquestionable integrity and placed the mission first. The rater determined he was successful in four and excellent in one of the ratable areas. His overall potential for promotion and/or service in positions of greater responsibility was fully capable. The applicant could best serve the Army as a platoon sergeant, meteorological section leader, and instructor. (2) The senior rater commented the applicant had a high degree of knowledge in meteorological operations; he set high standards in physical fitness and appearance; and he displayed genuine concern for Soldiers while insuring mission accomplishment. He rated the applicant as successful for his overall performance and superior for his overall potential for promotion and/or service in positions of greater responsibility; he gave the applicant a "2" rating in both areas. b. October 1994 – September 1995 (1) The rater answered yes to all questions regarding the applicant's values and NCO responsibilities. He commented, among other comments, the applicant was totally dedicated to Soldiers and the mission; he was a team player; and he contributed ideas of an innovative nature towards section mission accomplishment. The rater determined he was successful in three and excellent in two ratable areas. His overall potential for promotion and/or service in positions of greater responsibility was among the best. The applicant could best serve the Army as a platoon sergeant, meteorological section leader, and drill sergeant. (2) The senior rated commented the applicant had unsurpassed knowledge in meteorology; was a natural leader and a team builder; always ensured his Soldiers were trained and combat ready; and would surely excel as a section leader. He rated the applicant as successful for his overall performance and superior for his overall potential for promotion and/or service in positions of greater responsibility; he gave the applicant a "1" rating in both areas. 6. On 2 November 1995, the applicant was convicted by general court-martial, contrary to his pleas of: a. Charges: * one specification of Article 107, Uniform Code of Military Justice (UCMJ), for making a false official statement * one specification of Article 121, UCMJ, for wrongful appropriation of a firearm, military property, of a value of more than $100.00 b. He was sentenced to reduction to the grade of E-1 and to be discharged from the service with a bad conduct. On 5 January 1996, the sentence was approved and with the exception of the bad conduct discharge, ordered executed. c. On 8 January 1997, the U.S. Army Court of Criminal Appeals, on consideration of the entire record, including consideration of the issue personally specified by the applicant, affirmed the findings of guilty and the sentence. The applicant was notified of the decision and his right to appeal. He petitioned the U.S. Court of Appeals for the Armed Forces for a grant of review. On 25 October 2000, his petition was denied. d. On 5 March 2002, the findings and sentence having been finally affirmed, the bad conduct discharge was ordered executed. 7. On 13 September 2002, the applicant was discharged under AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV (Dishonorable and Bad Conduct Discharge) for reason "court-martial, other." His service was characterized as bad conduct. He completed 12 years, 11 months, and 12 days of net active service this period; 9 years, 6 months, and 19 days during his reenlistment period. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was retained 6 years, 6 months, and 20 days for the convenience of the Government; he had 58 days of excess leave; and he was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. 8. The applicant requests an upgrade. He states he found a gun and placed it in his wall locker and forgot about it. He believes the NCOs who had a grudge against him contributed to him being court-martialed. His dorm mate accused him of rape; the applicant hired an attorney and the accusations ended. The commander believed he was guilty of the rape accusation and because he was unable to use that accusation to eliminate him, the commander pursued the gun offense to separate him from the Army. a. His record shows he enlisted and reenlisted in the Regular Army. He was evaluated on two occasions. His rater rated him as successful and among the best in his duties and responsibilities as an NCO and fully capable in overall potential for promotion/service in positions of greater responsibility. His senior rater found he was successful in his overall performance and superior in his overall potential for promotion and/or service in positions of greater responsibility. He was convicted by general court- martial for making a false official statement and misappropriation of a firearm. He completed 9 years, 6 months, and 19 days after he reenlisted. His contractual obligation was 3 years; he was retained 6 years, 6 months, and 20 days for the convenience of the Government. He had 58 days’ excess leave. b. AR 635-200, Chapter 3, provides a member 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. c. 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. 9. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. 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 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. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, 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. 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 13 September 2002, is missing important entries that 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): * Army Good Conduct Medal * Driver and Mechanic Badge, with Driver Bar 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 was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was 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 (Dishonorable and Bad Conduct Discharge), states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005947 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005947 6 ABCMR Record of Proceedings (cont) AR20210005947 5