IN THE CASE OF: 

		BOARD DATE:  12 October 2022

		DOCKET NUMBER: AR20220002781


APPLICANT REQUESTS:  an upgrade of the character of his service from bad conduct
to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: a
DD Form 293 (Application for the Review of Discharge).

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 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, he is a business owner, a minister, and he has a 
family. His discharge has haunted him every day.

3.  A review of his available record shows:

	a.  He enlisted in the Regular Army on 8 January 2001 for a period of three years.

	b.  The highest grade he held was private/E-1.

	c.  He had lost time due to being absent without leave and imprisonment.

4.  Special Court-Martial (SPCM) Order Number 16, dated 12 August 2003, issued by 
Headquarters, 19th Theater Support Command, Unit #15015, Korea, shows the 
applicant pled guilty, and was found guilty, of:

*	two specifications of submitting a false official statement
*	two specifications of uttering certain checks, with intent to defraud and for the 
procurement of lawful currency

5.  The resulting sentence was confinement for four months, and a bad conduct 
discharge (BCD). His sentence was adjudged on 14 April 2003. The convening authority 
approved the sentence and except for the bad conduct discharge ordered it executed. 
The record of trial was forwarded to the appellate authority for appellate review. 

6.  On 6 October 2003, the U.S. Army Court of Criminal Appeals upheld the findings of 
guilty and the sentence as approved by the convening authority to be correct in law and 
fact. Accordingly, those findings of guilty and the sentence were affirmed.

7.  SPCM Order Number 31 issued by Headquarters, U.S. Army Armor Center, Fort 
Knox, KY, on 30 January 2004, directed, the sentence having been finally affirmed, and 
Article71(c) of the UCMJ having been complied with, the BCD portion of the sentence 
be executed.

8.  The applicant was discharged on 2 April 2004. His DD Form 214 shows he was 
discharged under the provisions of Army Regulation 635-200 (Personnel Separations-
Enlisted Personnel), Chapter 3, as a result of court-martial, and with a bad conduct 
characterization of service. His DD Form 214 shows he completed 2 years, 9 months, 
and 22 days of net active service. He had lost time from 19 October 2001 to 2 
December 2001; and 14 April 2003 to 30 July 2003. He was awarded or authorized: 

*	National Defense Service Medal
*	Army Service Ribbon

9.  The Board should consider the applicant's overall 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 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.  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. Upon review of the 
applicant’s petition and available military records, the Board found insufficient evidence 
of in-service mitigating factors to overcome the misconduct. The Board noted, the 
applicant provided insufficient evidence of post-service honorable conduct that might 
have mitigated the discharge characterization. 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

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 three years after discovery of the 
alleged error or injustice. This provision of law also allows the Army Board for 
Correction of Military Records (ABCMR)to excuse an applicant's failure to timely file 
within the three-year statute of limitations if ABCMR determines it would be in the 
interest of justice to do so.

2.  Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets 
forth the basic authority for the separation of enlisted personnel. This regulation 
provides:

	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 bad conduct 
discharge 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 
Military Discharge Review Boards and 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.

5.  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 will decide cases on the evidence of record. It is not an investigative body. 
The ABCMR may, in its discretion, hold a hearing or request additional evidence or 
opinions. Applicants do not have a right to a hearing.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20220002781


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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