IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210013547 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (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 28 March 2021 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 29 March 2021 * Army Commendation Medal Certificates (four) * Army Achievement Medal Certificates (three) * Army Good Conduct Medal Certificates (two) 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 having over ten years of service and receiving several Good Conduct Awards, Army Achievement Medals, and Army Commendation Medals, he made one mistake that ended his career serving our country. It was overlooked that he was defending myself and that in a heat of rage he made a bad judgement. Had his legal team presented a stronger case on his behalf, an Article 15 hearing would have been just. Having a BCD has affected his life, even after completing his sentence, and over shadows the many years of good service and Soldiers whom he trained. He agrees that his service and actions may not have been totally honorable but the lessons and hardship he and his family face daily are more deserving than a record of bad conduct. He is asking that his many years of good conduct be considered over the one night of making a bad life changing misconduct. He feels that he has grown and learned from his mistakes and ask for forgiveness. 3. The applicant enlisted in the Regular Army on 4 August 1986. He reenlisted in the Regular Army on 16 March 1989, 30 September 1992, 8 September 1994, and 12 June 1997. He was promoted to staff sergeant on 1 December 1993. 4. An undated Report of Result of Trial shows the applicant was tried by a general court-martial on 29 Jun 99, at Fort Bragg, NC, and found guilty of * violation of a lawful general regulation on or about 28 January 1999. * making a false official statement on or about 29 January 1999 (two specifications) * simple assault with a dangerous weapon, to wit: a loaded firearm, on or about 28 January 1999. 5. The sentence included his confinement for six months; and, reduction to the grade of E-1; and separation from service with a BCD. The sentence was approved and, except for that portion pertaining to separation with a BCD, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 6. Other than the Record of Results of Trial, the applicant's records are void of an additional documentation related to the processing of his separation. 7. The applicant was discharged on 23 May 2001. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, due to a court-martial conviction, and his service characterization was bad conduct. His DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he had 14 years, three months, and 24 days of active duty service * he was in excess leave status for 549 days with 146 days of lost time * his awards and decorations include the Army Commendation Medal (4th Award), Army Achievement Medal (3rd Award), and the Army Good Conduct Medal (3rd Award) 8. The record also includes a copy of Orders D-05-123483, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO on 8 May 2001, which honorably discharged the applicant from the U.S. Army Reserve effective 8 May 2001. 9. 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. 10. The Board should consider the applicant's statement, his personal decorations, and his overall military service for consideration granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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. 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 :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. ADMINISTRATIVE NOTE(S): Not Applicable 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 BCD 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. 4. 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. 5. 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.) AR20210013547 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1