IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210016823 APPLICANT REQUESTS: * His Bad Conduct Discharge (BCD) be upgraded to an Honorable Discharge * To appear before the Board in Washington, DC at no expense to the Government APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement, dated 21 May 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 July 2015 * letter, dated 24 June 2021 FACTS: 1. The applicant states, in effect, following his discharge, he was not provided any guidance on how to appeal his unjust separation. He made numerous attempts to obtain the records of his court-martial and was deflected and misdirected at every opportunity. He only recently was in a position to obtain contacts and learn about the process. The applicant contends he was not guilty of the crime of which he was accused, railroaded, and convicted. a. He believes his case was used as an example to demonstrate that the military was, indeed, taking action on offenses of this nature. Three years after the initial alleged incident and despite having no physical evidence, no witnesses, several gaping holes in the accuser's story, and after a three-year unexplained gap during which time he was told the matter was closed, they initiated an investigation and held a general court-martial. During all that time, he was a model Soldier who did not get into any more trouble; and his leaders at the will attest to this. The only evidence presented during the court-martial was her testimony. b. His counsel advised him not to testify and to elect being tried by a judge alone without a panel. After much time to reflect on this, he believes these recommendations were detrimental, negligent, and bordering on malicious intent in order to prove a point with his conviction. He would attach his record of trial, but has been unable to obtain it despite extensive documented attempts on his part. I would like for it to be reviewed. c. The recommendation following the investigation under the provisions of Article 32 of the Uniform Code of Military justice (UCMJ) for the applicant to receive a bar to reenlistment and nonjudicial punishment in the form of a summarized Article 15 was blatantly disregarded. The fact this was done despite the case being solely based on the statement of one individual, who was lying, with no evidence to back it up, was a travesty of the military justice system. d. This unfounded accusation has been the biggest injustice of his life. It has ruined his entire life and future. After serving time for a crime he did not commit, he was forced to register as a sex offender until recently since reevaluated their laws. He was branded a felon, which made it nearly impossible to find a decent job. He also could not have social media without reporting it, and until recently, could not move without having to reregister as a sex offender. This is the most unjust part of it, the humiliation of being treated like a pariah for something that he did not even do. It has also ruined countless relationships because when women see that you are on the sex offender registry, that is the last thing that they hear. e. In the interest of justice, he begs for his case to be heard, reviewed, and that some action be taken to correct this record and clear his name. 2. The applicant's service records are void of the complete facts and circumstances of his separation. However, his available records show: a. On 23 February 2011, the applicant enlisted into the Regular Army for a period of 3 years and 23 weeks. Upon completion of initial entry training, he was awarded military occupational specialty 92F (Petroleum Supply Specialist) and assigned to a unit located at Fort Knox, Kentucky. b. A DA Form 4187 (Personnel Action) shows the applicant’s duty status was changed from Present for Duty (PDY) to Confined by Military Authorities (CMA) at the Personnel Control Facility located at Fort Sill, Oklahoma on 13 February 2014. The remarks section of this form shows he was confined as a result of a court-martial. c. Orders 064-0001 issued by United States Installation Management Command, Headquarters, United States Army Garrison Command, Fort Knox, Fort Knox, Kentucky on 5 March 2014, reassigned the applicant from the Personnel Control Facility, Fort Sill, Oklahoma with confinement at the Midwest Joint Regional Corrections Facility, Fort Leavenworth, Kansas with a reporting dated of 21 February 2014. The additional instructions section of these orders show the applicant was tried by General Court- Martial 12-13 February 2014. He was sentenced to confinement for 6 months; reduction to Private/E-1; forfeiture of all pay and allowances; and a bad conduct discharge. d. General Court-Martial Order (GCMO) Number 6 issued by Headquarters, Fort Knox, Fort Knox, Kentucky on 1 July 2014, shows: (1) The applicant pled Guilty and was found Guilty of Charge I: Violation of Article 92, UCMJ on or about 11 December 2012, failing to obey a lawful general order, to wit: Memorandum, Secretary of the Army, dated 29 May 2012, subject: Army Directive 2012-14 (Prohibited Substances Controlled Substance Analogues)), by wrongfully possessing a synthetic cannabinoid. (2) The applicant pled Guilty and was found Guilty of Charge II: Violation of Article 112a, on divers occasions between on or about 15 December 2012 and on or about 15 January 2013, wrongfully using marijuana. (3) The applicant pled Not Guilty and was found Guilty of Charge III: Violation of Article 120, UCMJ: Specification 1: Did, at or near Grand Forks, North Dakota, on or about 22 October 2011, engage in sexual contact, to wit: touching her breasts, buttocks, and vulva, with by causing bodily harm to her, to wit: pulling her down by the shoulders. Plea: Not Guilty. Finding: Guilty, except the words "and vulva"; of the excepted words: Not Guilty. Specification 2: Did, at or near between on or about 6 April 2012 and on or about 22 April 2012, engage in sexual contact, to wit: touching her breasts and buttocks, with a child who had attained the age of 12 years, but had not attained the age of 16 years. Plea: None Entered. Dismissed on motion of trial counsel after arraignment and before plea. Finding: None Entered. Dismissed on motion of trial counsel after arraignment and before plea. Specification 3: Did, at or near between on or about 6 April 2012 and on or about 22 April 2012, engage in sexual contact, to wit: touching her buttocks, with a child who had attained the age of 12 years, but had not attained the age of 16 years. Plea: Not Guilty. Finding: None Entered. Dismissed on motion of trial counsel. Specification 4: Did, at or near Radcliff, Kentucky, on or about 20 April 2012, take indecent liberties in the physical presence a female under 16 years of age, by communicating the words, "I would f__k you right there," or words to that effect, with the intent to gratify the sexual desire of the said [the applicant] Plea: Not Guilty. Finding: Not Guilty. Specification 5: Did, at or near on or about 20 April 2012, take indecent liberties in the physical presence of a female under 16 years of age, by asking her if she wanted to "suck his d__k," or words to that effect, with the intent to gratify the sexual desire of the said [the applicant]. Plea: Not Guilty. Finding: Not Guilty. Specification 6: Did, at or near on or about 20 April 2012, take indecent liberties in the physical presence of a female under 16 years of age, by exposing his penis to her, with the intent to gratify the sexual desire of the said [the applicant]. Plea: Not Guilty. Finding: Not Guilty. (4) His sentence consisted of: reduction in rank/grade to Private/E-1; forfeiture of pay and allowances; 6 months of confinement; and to be discharged from service with a BCD. The sentence was adjudged on 13 February 2014. (5) The sentence was approved and, except for that portion of the sentence pertaining to a BCD, ordered to be executed. e. A DA Form 4187 shows the applicant’s duty status was changed from CMA to PDY on 10 July 2014. The remarks section of this form shows he was released from confinement at the Midwest Joint Regional Corrections Facility, Fort Leavenworth, Kansas. f. On 1 July 2015, orders discharged the applicant from the Regular Army, effective 10 July 2015. g. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 3, as a result of court-martial with a characterization of service of Bad Conduct. He was credited with completion of 3 years, 11 months, and 21 days, with lost time due to confinement from 13 February to 9 July 2014 and excess leave from 28 July 2014 to 10 July 2015. He did not complete his first full term of service. Additionally, his DD Form 214 shows he was awarded or authorized the: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 3. The applicant provides a letter rendered by a representative of the on 24 June 2021. This letter informed the applicant they had received information pertaining to his conviction in General Court-Martial. Effective immediately, his name was removed from the Sex Offender and Crimes Against Minors” Registry and website, and he was under no obligation to register or re-register at that time. 4. The applicant desires to have his discharge upgraded to Honorable because he believes the accusations were unfounded and he was given poor advice by counsel. He also desires to appear before the Board in Washington, DC at no expense to the Government 5. Army Regulation 635-200 provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 6. 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 (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. 7. In regards to the applicant's request for a personal appearance, Army Regulation 15- 185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. One potential outcome based on the applicant being found not guilty before a court martial and all charges were dismissed was to grant partial relief with an upgrade to general. However, upon review of the applicant’s petition and available military records the Board majority determined there was insufficient evidence of in-service mitigating factors to overcome the misconduct. 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 no provided post- service character 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. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. 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 ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 2. Title 10, USC, section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 1-13b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 3 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a bad conduct discharge could only be issued to a Soldier pursuant to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then 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 (Personnel and Readiness) issued guidance to Service DRBs and Service 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) AR20210016823 1 ABCMR Record of Proceedings (cont) AR20210016823 1