IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20220003706 APPLICANT REQUESTS: upgrade his bad conduct discharge to general, under honorable conditions and a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 15 November 2021 * Self-authored Statement * Excerpts from Court-Martial Transcripts (pages 49-76), 8 January 2009 * Diploma, (City) University, 5 May 2020 * Student Transcripts, (City) University, 5 May 2020 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, 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: a. When he joined the Army, he was a poor runner, but the recruiter told him he would get better training in basic training. He failed a physical fitness test before basic training, but the recruiter said he could go to basic training. He was never able to pass the run and he suffered from shortness of breath and bad shin pains. b. He went to basic training and received passing scores, but he never passed the push-ups or run. Someone falsified his run score. He should have been chaptered out before basic training when he could not pass the APFT tests. c. When he arrived at his permanent duty station, he failed the run on the first APFT. The entire company treated him horribly. The Soldiers in his company hazed him and treated him poorly, like he was lazy and did not try. He became suicidal and wanted out of the Army. Another Soldier was being chaptered out and told stealing would get him kicked out. This did not get him kicked out, but the unit treated him even worse. d. In December 2006, his unit denied his Christmas leave and he could not take it anymore, so he went AWOL. He could not face the Soldiers who constantly hazed him every day. e. When he returned to his unit many Soldiers had moved on but there were many who were familiar with him. There was a period of multiple months before his trial when he started making friends and the harassment about his running stopped. He excelled in his MOS as a fire support specialist and helped teach other members of his platoon how to call fire. f. The commander called him to his office to sign chapter paperwork. The first sergeant told him he would be chaptered out in a few weeks. Days later the commander again called into the commander's office and asked to complete a statement for the records. He found out his chain of command used the statement against him and they previously decided to court-martial him. His commander tricked him into signing a statement without informing him the chain of command would use it for a court-martial. His military lawyer told him if he mentioned forged APFT scores in court he could get in worse trouble. g. After his conviction and release he was prescribed pain killers for his back pain in prison and became addicted to them. He entered treatment in 2015 and has been clean for over 5 years. In May 2020 he received his bachelor's degree in addiction psychology and is currently studying for his master's degree. h. When he was in the Army, they told him he did not have asthma, but his current doctor says he does and prescribed him an inhaler which helps him breathe better. 3. On 28 December 2005, he enlisted in the Regular Army for a period of 4 years and 17 weeks at age 19. He completed basic combat training, he completed advanced individual training, and he was awarded military occupational specialty 13F (Fire Support Specialist). 4. In connection with his enlistment, he underwent an enlistment medical examination at MEPS. The examining physician noted no abnormalities and found he was qualified for service. 5. He was promoted to private 2/E-2 on 28 June 2006. 6. His duty status changed on the following dates: * absent without leave (AWOL) on 16 December 2006 * dropped from the rolls (DFR) on 15 January 2007 * a deserter wanted by the armed forces on 18 January 2007 * present for duty (PDY) on 21 August 2008, after apprehension by civil authorities in , and transfer to control of military authority 7. The DA Form 458 (Charge Sheet) is not in the applicant's available records. A DD Form 616 shows civil authorities in , apprehended him and returned him to military control on the same date, 21 August 2008. 8. On 15 June 2009, he was authorized excess leave, effective 27 June 2009. 9. General Court-Martial Order (GCMO) Number 20, issued by HQ, 3rd Infantry Division and Fort Stewart, Fort Stewart, 28 July 2009, shows after pleading not guilty to violation of Article 85 of the Uniform Code of Military Justice, he was found guilty of violation of Article 86, the lesser included offense, terminated by apprehension; in that he did on or about 16 December 2006 remain AWOL from his unit until he was apprehended on 21 August 2008. His sentence included a reduction to private/E-1, confinement for 6 months, and to a bad conduct discharge. The sentence was adjudged on 8 January 2009. 10. GCMO Number 15, 23 July 2010, issued by HQ, U.S. Army Accessions Command, and Fort Knox, Fort Knox, KY confirmed the provisions of Article 71c having been complied with, credited the applicant to 2 days confinement against the sentence to confinement; and ordered the sentence to a bad conduct discharge executed. 11. Orders 041-0159 issued by U.S. Army Installation Management Command, Fort Knox, 10 February 2011, assigned him to U.S. Army Transition Center with a date of discharge 16 February 2011. 12. On 16 February 2011, he was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years and 24 days of net active service with 1037 days of time lost from 16 December 2006 to 21 August 2008 and from 8 January 2009 to 26 May 2009; and he had 631 days excess leave. It further shows in: * block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal * block 24 (Character of Service) – bad conduct discharge * block 25 (Separation Authority) – Army Regulation 635-200, Chapter 3 * block 28 (Narrative Reason for Separation) – court-martial, other 13. The Army Review Boards Agency requested, and the U.S. Army Crime Records Center provided a memorandum, 25 May 2022, (Request for Sanitized Record of Investigation and Military Police Reports for Official use Purposes (Military Sexual Assault/Trauma) – (Applicant). Its search of the Army criminal files indexes revealed no records pertaining to the applicant. 14. The applicant provided the following evidence for Board consideration: a. A portion of the GCM transcript of his direct examination consisting of 27 pages, showing testimony of several witnesses. b. A (City) University Diploma, 5 May 2020, showing he earned a Bachelor of Arts Degree in Psychology and Addiction Counseling. c. A transcript of courses taken from (City) University, 2020. 15. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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. 2. 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 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 ABCMR. a. 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. b. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. By law (10 USC 1552), court-martial convictions stand as adjudged or modified by appeal through the judicial process. This Board 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. The ABCMR does not have authority to set aside a conviction by a court-martial. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect on 6 September 2011, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-7 provides 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 separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to AD. b. Paragraph 3-11. Bad conduct discharge. A Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 5. 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//