IN THE CASE OF: BOARD DATE: 1 February 2022 DOCKET NUMBER: AR20210010934 APPLICANT REQUESTS: * an upgrade of his bad conduct discharge to honorable * to change his narrative reason for separation to secretarial authority * to change his reentry (RE) code to RE-1 (qualified for enlistment) APPLICANT AND COUNSEL’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Approved court-martial sentence dated 8 August 2018 * Assumption of command memorandum dated 27 March 2018 * Addendum to the Staff Judge Advocate’s (SJA) recommendation in the general court-martial dated 8 August 2018 * Action by the Convening Authority dated 8 August 2018 * Federal Bureau of Investigation (FBI) documents dated 7 April 2021 * Law Enforcement Report – First Correctional Final dated 23 January 2017 * Applicant’s self-written letter in his own behalf dated 12 July 2018 * Enlisted Record Brief dated 2 March 2017 * Enlistment/Reenlistment Document * Sworn Statements * Several photographs * Financial Support to Spouse memorandums * First Sergeant e-mail dated 10 February 2017 * Finance Office extract/document FACTS: 1. The applicant and counsel state the discharge was unfair at the time and remains so now. The discharge was materially in error. The applicant requests an honorable discharge, narrative reason of secretarial authority and RE code 1. The applicant requests liberal consideration. The applicant should have received additional clemency and should have received liberal consideration. 2. On 9 November 2015, the applicant enlisted in the Regular Army for a period of 5 years. He completed training requirements and was awarded military occupational specialty 11B (Infantryman). 3. In December 2016, at Fort Stewart, GA, the applicant’s wife provided sworn statements, wherein she stated, in pertinent part, the applicant had physically abused her on numerous occasions. He had strangled, slapped, and spit on her on multiple occasions. 4. A Final Law Enforcement Report dated 23 January 2017, issued by the Installation Provost Marshal Office (PMO), Fort Campbell, KY, shows the applicant was the subject of an investigation for “Assault Consummated by Battery (Uniformed Code of Military Justice – Article 128). On 18 January 2017, the PMO was notified of possible incidents of domestic violence, when the Office of the Staff Judge Advocate (OSJA) reported an incident, which was originally reported to the Installation PMO, Fort Stewart, GA. The applicant’s wife provided her initial statement on 5 December 2016, which stated she was being physically abused by the applicant. Photographs were provided, which revealed physical injuries. The applicant was restrained from initiating any contact/communication with his wife. 5. On 8 August 2018, the Staff Judge Advocate (SJA) provided a memorandum for the Commander, Fort Campbell, KY, subject: Addendum to the SJA’s Recommendation in the General Court-Martial Case of United States v. [the applicant]. The SJA stated, in pertinent part: a. The Defense Counsel made no claims of legal error. b. The accused [applicant], through his Defense Counsel, requests "for his conviction to be vacated." Additionally, the applicant requests "you consider a lesser punishment, so that his reputation as he moves on in life will not be sullied." The SJA had considered all the submissions from the applicant’s Defense Counsel and the applicant, and in his opinion, no clemency was warranted. c. The SJA recommended that, the General Court-Martial Convening Authority approve the sentence and, except for that part of the sentence extending to a Bad Conduct Discharge, order the sentence executed. d. The General Court-Martial Convening Authority approved the recommendation of the SJA, after carefully considering: * The Result of Trial dated 31 January 2018 * SJA’s recommendation dated 10 May 2018, and The Addendum to the SJA’s recommendation * Memorandum from the applicant’s Defense Counsel dated 12 July 2018 * Letter from the applicant dated 12 July 2018 * The Record of Trial * The applicant’s Enlisted Record Brief, Prosecution Exhibit 8, dated 24 January 2018 6. On 8 August 2018, the General Court-Martial Convening Authority approved the applicant’s sentence and, except for the part of the sentence extending to a Bad Conduct Discharge, was ordered executed. 7. On 19 December 2018, the U.S. Army Court of Criminal Appeals corrected the applicant’s General Court-Martial Order Number 19, dated 8 August 2018, by deleting Cumming, Georgia in Specification 3, Charge II and substituting therefor “Key West, FL”, and by correctly reflecting the date the sentence was adjudged as 31 January 2018. 8. On 31 May 2019, after post-trial and appellate reviews, the applicant’s sentence to a bad conduct discharge was affirmed and ordered executed. 9. The applicant’s record did not contain the complete court-martial proceedings; nevertheless, the DD Form 214 he was issued shows he was discharged from the Army on 14 June 2019, as a result of court-martial and given a Bad Conduct character of service. The applicant completed 3 years, 7 months and 6 days of net active service. He was not awarded a personal decoration and did not complete his first full term of service. 10. The applicant and counsel provided the documents listed under the supporting documents considered by the Board. All of the documents will be provided to the Board for review and consideration. 11. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 12. 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 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. 13. In order to justify correction of a military record the applicant and counsel must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The Board can consider the applicant’s petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, 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 Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. a. A majority of the Board found that based on a preponderance of evidence, the character of service the applicant received upon separation was not in error or unjust. He was convicted by a court-martial, which was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Furthermore, his RE code was assigned based on the fact that he was discharged under the provisions of chapter 3 of AR 635-200 due to a general court-martial conviction. Absent the applicant’s conviction that resulted in his bad conduct discharge, there was no fundamental reason to discharge him. The underlying reason for his discharge was his court-martial conviction. The only valid narrative reason for separation permitted is "Court-Martial" and the appropriate RE code associated with this discharge is “4.” b. The member in the minority found that the applicant has expressed remorse, showed humility, and took responsibility for his actions. Based on this, the member in the minority voted to upgrade his discharge from bad conduct to under other than honorable conditions discharge. No change should be made to his narrative reason separation code, or RE Code. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-Martial convictions stand as adjudged or modified by appeal through the judicial process. 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. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier will be given a Bad Conduct Discharge/Dishonorable Discharge only pursuant to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. 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. a. 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. b. 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. 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) AR20210010934 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1