IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220002511 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Character Statement FACTS: 1. The applicant did not file within the three-year time frame 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 he requests review of his record and a discharge upgraded due to various circumstances and his honorary serve as an American citizen. He takes full responsibility for his behavior during his time of service and understands that he conducted himself in an improper manner while serving as an Army Soldier. As a young Soldier, he was shown “zero effect mentality” and processed with a court martial. There was no opportunity given to redeem himself, as he was processed out of the service immediately while serving a brig sentence. He was a young Soldier that made a dumb decision (committing adultery), which involved having an affair with a senior enlisted Soldier’s daughter. He has since learned from that mistake, became a productive citizen, and happily married and raising a family for the past 20 years. He currently serves as a distribution manager (24 years) for his work site. He is a deacon for his church family, and young mentor for various organizations withing he community. He cannot erase the mistake made, but he utilized his experience and shortfalls as a platform to teach others how to be successful in life. He is respectfully requesting for his record to be reviewed and rendered an upgrade in the current discharge status to allow him a second chance. Even with the mistake made, he continues to take pride in knowing he once wore the uniform and will always consider himself in the Soldier brotherhood. 3. The applicant enlisted in the Regular Army on 22 June 1989, for 4 years. He was awarded military occupational specialty 76Y (Unit Supply Specialist). He served in Germany from 4 November 1989 through on or about 30 July 1990. 4. Before a general court-martial on or about 13 December 1990, at Bad Kreuznach, Germany, the applicant was found guilty of one specification of carnal knowledge from between 24 February 1990 and 11 March 1990. The court sentenced him to a bad conduct discharge, confinement for 15 months, forfeiture of $420.00 pay per month for 15 months, and reduction to private/E-1. The sentence was adjudged 13 December 1990. The sentence was approved and, except for the part of the sentence extending to a BCD, would be executed. The record of trial was forwarded for appellate review. 5. The applicant’s duty status was changed to confined by military authorities on 13 December 1990, verified with Report of Result of Trial dated 13 December 1990. 6. The Report of Mental Status Evaluation on 5 April 1991, shows he had the mental capacity to understand and participate in the proceeding. 7. The applicant’s duty status was changed to present for duty on 30 April 1991. 8. The U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 14 May 1991. The applicant asserted that the adjudged confinement for fifteen months was too severe. The sentence was found to be inappropriately severe and reduced the length of both the confinement and the forfeitures. At trial, the applicant pled guilty to one instance of carnal knowledge. His company commander, first sergeant, and three other noncommissioned officers testified on behalf of the applicant. They testified that he was a good Soldier and a good worker. The witnesses testified that he deserved a second chance. In addition, the girls’ stepfather, a sergeant first class testified that the applicant deserved “light (illegible). 9. General Court-Martial Order Number 357, U.S. Correctional Brigade, Fort Leavenworth, KS, dated 17 September 1991, noted that the sentence had been finally affirmed and Article 71 (c) having been complied with, the bad conduct discharge would be executed. 10. Orders 156-1, dated 23 September 1991, U.S. Correctional Brigade, Fort Leavenworth, discharged the applicant. Effective date 26 September 1991. 11. The applicant was discharged on 26 September 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. His characterization of service was bad conduct. He completed 1 year, 10 months, and 17 days of active service. He lost time from 13 December 1990 to 29 April 1991. It also shows he was awarded or authorized: Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 12. The applicant provides: a. A self-authored statement dated 20 October 2021, in which he reiterates the above and, he made the decision at the age of 19 that would take his dream of serving his country as a Soldier in the U. S. Army and making it a career and retiring from the military. He joined the army in June 1989. 30 years later his heart still burns because of the people he hurt with his decision. That decision has taught him to pour everything he has into his family and caring for other people. His children are grown and college graduates, business owners with kids of their own. His mistakes have always been a teaching tool that he has used when parenting his own children about making the right decisions. The skills he learned as a unit supply specialist during his time in the military helped him a great deal and for that he is grateful. His love and dedication still remain deep in his heart for the U. S. Military, and it remains as strong as it did the day, he enlisted in the Delayed Entry Program as a junior in high school in 1988. b. A character statement dated 5 August 2021, his friend states he has known the applicant over 30 years and that the applicant has been in the management field as a distribution manager for 24 years teaching, mentoring, and counseling numerous employees on issues ranging from job performance to family issues. The applicant was awarded custody in 2002 of four children who were all under 13 at the time. The applicant is very active in the church, the community and anyone who needs an uplifting word or advice on an issue. The applicant’s selfless service and honor has always been engrained in him and is who he is and will always be. His work is his bond 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 14. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 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 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 misconduct and 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 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 insufficient evidence of post-service achievements or letters of reference that outweigh his misconduct and support a clemency determination. Based on a preponderance of evidence, the Board determined the character of service he 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 :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 (AR) 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. c. Chapter 3 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 4. 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) AR20220002511 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1