IN THE CASE OF: BOARD DATE: 1 November 2022 DOCKET NUMBER: AR20220006657 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two (2) Self-authored statements * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Three (3) DA Forms 2823 (Sworn Statement) * Court-Martial transcript * Six (6) Character statements FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200004942 on 6 January 2021. 2. In the applicant’s self-authored statements, he states in summary: a. He had dreams to serve in the Armed Forces, visit Korea, be promoted to Sergeant, and ultimately transfer to the Pentagon to play basketball for the Nation’s Capital. Instead, he was betrayed and branded to get him out of the way. He had recently experienced trauma when his father passed away and then was witness to two Koreans being decapitated by the truck he was riding in on his way back from the Demilitarized Zone (DMZ). b. Two Criminal Investigation Division (CID) agents or recruits, Mr. Fl___ and Mr. Hi___, needed a scapegoat. When Mr. Fl___ approached him to inquire if he knew where to get rid of the equipment, he told him “no.” The next thing he knew, charges were being brought against him. He went to his chain of command to discuss what he had been told, questioning why he was appointed to a position of greater responsibilities as a private. He was transferred to the Post Exchange and Class Six, being told that he would get to practice his basketball game. He was falsely accused of starting a fight over a Korean lady. He was sure he had a target on his back. c. The last straw was when he would not give in to a female Captain (CPT), who had a thing for him. That is when his life began to go downhill. He alerted his chain of command about what was going on. His name was on everything in the warehouse. He still believes he was placed in that position to be a decoy for the CID agents/recruits and whomever else was conspiring against our Nation. He has and will continue to prove the individual who committed the larceny was given immunity for saying he [applicant] was part of the job. d. He was recently asked to write what God has done for him. There were many instances that he could talk about. First, he knows God is real and that he [applicant] is still trying to get to know Him. Although God has helped him out of situations, difficulties, and homelessness, he sometimes tries to rely on himself. He continues to cite instances in which he believes God, The Holy Spirit, has loved and guided him through tough, challenging times over the years. He's a work in progress and he believes that God is still working on him. He’s still in the land of the living despite his health issues and he wakes up every morning thanking God for His grace and mercy. 3. The applicant provides: a. DD Form 214 shows he was discharged on 24 June 1981, under the provisions of Army Regulation (AR) 635-200, chapter 11, as a result of court-martial (other), with his character of service as bad conduct. He served 3 years, 2 months, and 24 days of net active service this period and had lost time from 13 February 1979 through 26 November 1979 and again from 3 September 1980 through 2 October 1980. b. Three (3) DA Forms 2823 (Sworn Statement), dated 23 October 1978, written and submitted by witnesses familiar with the events that led to the applicant’s general court-martial. c. Court-Martial transcript is not considered new evidence, as this was previously submitted as evidence in ABCMR Docket Number AR20200004942. d. Six (6) Character statements authored by his sister, his work colleagues, both past and present, and his Masonic brothers. The statements attest to his character, his spirituality, his personal accomplishments, and how the circumstances that led to his discharge does not define who he is. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 June 1977. b. He served in the Republic of Korea, from on or about 19 October 1977 through on or about 12 February 1979. c. Before a special court-martial on or about 17 August 1978, at Camp Humphreys, Korea, he was convicted of unlawful entry and of assault. He was sentenced to be reduced in rank/grade to private (PVT)/E-1. d. Before a general court-martial on or about 13 February 1979, at Seoul, Korea, he was convicted of stealing four CH-47 helicopter axial pumps of a value of about $1,663.00 per pump. His sentence included his confinement at hard labor for 12 months, forfeiture of $169.00 pay per month for 12 months, and his separation from service with a bad conduct discharge. His sentence was approved and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. e. Prior to completion of the appellate review, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty. f. Before a special court-martial on or about 29 May 1980, at Fort Knox, KY, he was convicted of assaulting a military policeman in the execution of his military police duties, on or about 9 February 1980, and of possessing some amount of marijuana, on or about 5 March 1980. He was sentenced to be separated from service with a BCD. His sentence was approved on 18 July 1980 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. g. The U. S. Army Court of Military Review found that the applicant's conviction for possession of marijuana was based upon an illegal search and seizure and set aside the finding of guilty of that specification and dismissed that charge. The Court affirmed the modified findings and sentence on 25 November 1980. h. The applicant's record is void of documentation related to the U.S. Army Court of Military Review's review and affirmation of the findings and sentence in his general court-martial conviction on 13 February 1979. i. Special Court-Martial Order Number 106, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky on 3 June 1981, noted that the findings in the applicant's court-martial trial had been modified; however, the sentence was affirmed. These orders ordered the applicant's BCD duly executed. j. The applicant was discharged on 24 June 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 11, pursuant to his court- martial sentence, and his service was characterized as bad conduct. He completed 3 years, 2 months, and 24 days of active service and he had lost time from 13 February to 26 November 1979 and from 3 September 1980 to 2 October 1980. 5. The applicant petitioned the ADRB for an upgrade of his service characterization. The ADRB considered his request on 22 August 1989, determined he was properly discharged, and denied his request for relief. 6. On 5 February 2008, the Board considered his petition for an upgrade of his discharge. However, the Board determined he was properly discharged, and denied his request for relief. 7. On 6 January 2021, after reviewing the application and all the supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, documents provided by the applicant, the frequency and nature of his misconduct and the reason for his separation. The applicant provided post-service achievements or letters of support to weigh a clemency determination. However, the Board members determined that the burden of proof lies with the applicant; however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant’s request for an upgrade of his characterization, based on the misconduct. 8. By regulation, a member 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. 9. 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: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant's trial by a court-martial was warranted by the gravity of the offense charged. His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. The applicant provided no evidence of post-service achievements or letters of reference in support of 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 : : : GRANT FORMAL HEARING xx: xx: xx: 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 to amend the decision of the ABCMR set forth in Docket Number AR20200004942 on 6 January 2021 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. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel, as a result of court- martial. a. Paragraph 1-13a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b provides that 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. Paragraph 1-13c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 11-2 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. 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. 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. 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. 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) AR20220006657 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1