IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220004976 APPLICANT REQUESTS: in effect: * expunction of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER) – Final, 30 May 2019, and allied documents from CID databases, the Defense Central Investigations Index (DCII), and his Army records * expunction of his State sexual offender registry document from his civilian records * restoration of all rights and benefits * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored Statement, undated * Self-authored Letter, 7 December 2022 * Statement of Trial Results (STR), 18 June 2019, with STR Findings Worksheet * State Police Sex Offender Registry Offender Identification, 26 June 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 January 2020 * Department of Veterans Affairs (VA) Summary of Benefits Letter, 7 December 2022 * Excerpt from Army Regulation 27-10 (Military Justice) FACTS: 1. The applicant requests removal of a CID LER from his records. a. In accordance with Army Regulation 15-185 (Army Board for Correction of Military Records), the Army Board for Correction of Military Records (ABCMR) begins its consideration of each case with the presumption of administrative regularity and only after an applicant has exhausted all other administrative remedies. A review of his application indicates he has not submitted a request to CID for this records correction. b. He must submit a request to the Commander, U.S. Army Criminal Investigation Command, U.S. Army Crime Records Center, 27130 Telegraph Road, Quantico, VA 22134, with supporting evidence in accordance with Army Regulation 190-45 (Law Enforcement Reporting), paragraph 3-6 (Amendment of Records). His request may be in letter format and must be signed and dated. c. As a result, this portion of his request will not be discussed further in this record of proceedings. 2. He requests, in effect, correction of his STR to show his conviction did not require him to register as a sex offender and removal of the documentation from the applicable State sex offender registry. a. In accordance with Army Regulation 15-185, the ABCMR's jurisdiction under Title 10, U.S. Code, section 1552, extends to any military record of the Department of the Army. The ABCMR may return an application without action if the Board does not have jurisdiction to grant the requested relief. b. The Sex Offender Registration and Notification Act requires sex offenders, including those convicted at court-martial, to register with State systems. Accordingly, service members convicted of sex offenses described in the Sex Offender Registration and Notification Act, including those offenses listed at appendix 4 to enclosure 2 of Department of Defense (DOD) Instruction 1325.07 (Administration of Military Correctional Facilities and Clemency and Parole Authority) must register with public State sex offender registries. c. Additionally, per Title 10, U.S. Code, section 1552(f), the ABCMR's authority to correct records of courts-martial and related administrative records is limited to correcting records to reflect actions taken by reviewing authorities or to acting on a court-martial sentence for purposes of clemency. The requirement to register as a sex offender is not part of the court-martial sentence, nor is it an action taken by a reviewing authority. As such, this portion of his request will not be considered by the Board as it does not have jurisdiction to grant the requested relief. 3. The applicant states, in effect, the CID investigation and his conviction by a general court-marital were both in material error. He requests removal of the CID report and his general court-martial documentation from his records. He further requests restoration of all his rights as a result (see his self-authored statement and letter). 4. He enlisted in the Regular Army on 26 May 2010. Upon completion of initial entry training, he was awarded military occupational specialty 92A (Automated Logistical Specialist). He was promoted to the rank/grade of staff sergeant/E-6 effective 1 November 2017. 5. The redacted CID LER – Final, 30 May 2019, shows the Fort Campbell, KY, CID Office was notified by the Naval Criminal Investigation Service (NCIS) on or about 19 September 2018 that the applicant exposed himself to (name redacted – female) at Camp Lemonier, Djibouti. The investigation revealed that: a. (Name redacted – female) reported she and the applicant were engaged in a conversation inside her vehicle on 19 August 2018 at 2359 adjacent to Building 730, Camp Lemonier, Djibouti, when the applicant exposed himself, grabbed her hand, and attempted to place her hand on his genitals. (Name redacted – female) stated she pulled her hand away and exited the vehicle. (Name redacted – female) stated the applicant apologized to her via short message service text message and email after the incident. b. NCIS advised the applicant of his rights, which he waived and confessed he exposed himself to (name redacted – female) and attempted to place her hand on his genitals. c. NCIS obtained text messages and email traffic between (name redacted – female) and the applicant, which determined the applicant apologized to (name redacted – female) for his actions. d. On 16 October 2018, Captain (name redacted), Trial Counsel, Office of the Staff Judge Advocate, Fort Campbell, opined probable cause existed to believe the applicant committed the offenses of attempted abusive sexual contact and indecent exposure. No additional investigative efforts were required. There was sufficient evidence to provide to command for consideration of action. e. The investigation noted the following statutes/offenses under the Uniform Code of Military Justice (UCMJ) were considered with this report: * Article 120 – Attempted Abusive Sexual Contact * Article 120c – Indecent Exposure 6. The STR Findings Worksheet shows a general court-martial was convened at Fort Campbell to consider the applicant for the offenses of Article 80 (Attempt to Commit Any Offense) and Article 120c (Indecent Exposure). The findings revealed he was found "Not Guilty" of Article 80 and "Guilty" of Article 120c. The findings were announced on 7 June 2019.? 7. The STR, 18 June 2019, shows his sentence was adjudged on 7 June 2019. His punishment consisted of forfeiture of $1,776 pay for 1 month and reduction to grade E-4. Item 30 (Is Sex Offender Registration Required in Accordance with Title 34 U.S. Code, Section 209, or DOD Instruction (DODI) 1325.7) is marked "Yes." This form was signed by the military judge on 18 June 2019. 8. The State Police Sex Offender Registry Offender Identification, 26 June 2019, shows his identification information and the offense requiring registration as "Federal or Military Crime" with the remark: "original conviction for indecent exposure (military conviction/)." 9. The form titled "Staff Judge Advocate (SJA) Clemency Advice" shows the SJA recommended the courts-martial convening authority take no clemency action on this case. The SJA signed this form on 23 October 2019. 10. The form titled "Convening Authority Action" shows the general court-martial convening authority, having reviewed the matters submitted by the applicant, took no action on the finding and/or the sentence on 23 October 2019. 11. He was honorably discharged by reason of completion of required active service on 21 January 2020 in the rank/grade of specialist/E-4. His DD Form 214 shows he completed 9 years, 7 months, and 26 days of net active service during this period. 12. The form titled "Judgment of the Court" shows the STR was not modified or supplemented by any post-trial action by the convening authority. This document was signed and dated by the military judge on 9 February 2020. 13. The U.S. Army Court of Criminal Appeals memorandum (Certification of Completion of Appellate Review in the Case of United States v. (Applicant)), 19 August 2020, shows an appellate review was completed in accordance with the Rules for Courts-Martial (RCM) and the findings of guilty and sentence adjudged were determined to be correct in law and fact with the conviction being final. 14. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 20 August 2020, lists the applicant as the subject. a. In the "Referral Information," the following two offenses were listed: (1) Indecent Exposure – Article 120c, with a date of 19 August 2028 and a commander's decision date of 18 June 2019; and (2) Attempted Abusive Sexual Contact – Article 120, with a date of 19 August 2018 and a commander's decision date of 18 June 2019.? b. In the "Action Taken" section, a checkmark was placed in the box by the statement: "Judicial – Court Martial or Civilian Criminal Court." c. The "NJP [Nonjudicial Punishment]/Court-Martial/Civilian Criminal Court Proceeding Outcome" section shows the applicant was found guilty of the offense of "indecent exposure" and was found not guilty of "attempted abusive sexual contact." d. The "Nonjudicial/Judicial Sanctions" section shows the applicant's punishment imposed on 7 June 2019 consisted of forfeiture of $1,776 pay for 1 month and reduction in grade from staff sergeant/E-6 to specialist/E-4. e. The "Commander's Remarks" section noted the report was completed on behalf of the commander and contained the following statement: "DA Form 4833 completed on 20 Aug 20 [20 August 2020] by SA [Special Agent] [name redacted], HQUSACIDC [Headquarters, U.S. Army Criminal Investigation Command], based on Judgement of the Court and Statement of Trial Results, dated 9 Feb 20 [9 February 2020] and 18 Jun 19 [18 June 2019], respectively, and signed by LTC [Lieutenant Colonel] [name redacted] Military Judge. The above comment about the report being completed on behalf of the commander was incorrect. Copies of documents provided to the USACRC [U.S. Army Crime Records Center] for filing with the case." 15. On 3 November 2022, the Army Review Boards Agency Case Management Division provided the applicant with a copy of the CID Report of Investigation (ROI) and offered him the opportunity to comment. He did not respond. 16. The VA summary of benefits letter, 7 December 2022, shows the VA determined he was totally and permanently disabled due to service-connected disabilities with a 100-percent disability rating as of 11 May 2021. 17. He provided an excerpt from Army Regulation 27-10, 11 May 2016, with highlighted portions of paragraph 24-2d (Nonreportable Offenses). This paragraph defines nonreportable offenses as: a. an offense involving consensual sexual conduct between adults is not a reportable offense unless the adult victim was under the custodial care of the offender at the time of the offense; b. an offense involving consensual sexual conduct is not a reportable offense if the victim was at the time of the conduct at least 13 years old and the offender was not more than 4 years older than the victim, as determined by date of birth; and c. offenses under Article 120 or Article 134, UCMJ, that constitute only public sex acts between consenting adults, such as indecent exposure.? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, 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. Upon review of the applicant’s petition and available military records the Board determined the applicant did not provide evidence that clearly exonerates him or shows that there was a clear injustice. The CID Report shows there was credible information regarding the applicant's involvement in the alleged offense. Evidence in the record show the applicant found guilty of the offense for NJP [Nonjudicial Punishment]/Court-Martial/Civilian Criminal Court. The Board found insufficient evidence for restoration of all the applicant’s rights and benefits. Therefore, relief was denied. 2. The 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 Titling or indexing on CID reports does not denote any degree of guilt or innocence. If there is a reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof, requiring only the merest scintilla of evidence far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of evidence), and in searches (probable cause). 3. 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 : : : 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. 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. 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 evidence. 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. 2. DODI 1325.07, 11 March 2013: a. reissues DODI 1325.7 (Reference (a)) to implement policy, assign responsibilities, and prescribe procedures pursuant to DOD Directive 1325.04 (reference (b)) and in accordance with the authority in DOD Directive 5124.02 (reference (c)) to carry out the administration and operation of military correctional programs and facilities and the administration and operation of military clemency and parole programs; and b. revises the offenses for which sex offender notification is required, in accordance with section 20901 et sequentes, of Title 34, U.S. Code, also known as the "Sex Offender and Registration Notification Act" (reference (f)) and adds notification to the U.S. Marshals Service Sex Offender Targeting Center in accordance with paragraph 1.2.d. of DODI 5525.20 (reference g). c. Appendix 4 to enclosure 2 (Listing of Offenses Requiring Sex Offender Processing) states a service member who is convicted in a general or special court- martial of any of the offenses listed in Table 4 must register with the appropriate authorities in the jurisdiction (State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the U.S. Virgin Islands, and Indian Tribes) in which he or she will reside, work, or attend school upon leaving confinement or upon conviction if not confined. Generally, this registration must take place within 3 days of release from confinement or within 3 days of conviction if not confined. Table 6 (Offenses Defined on or after 28 June 2012) lists Article 120c (Indecent Exposure), UCMJ, as a reportable offense. 3. Army Regulation 27-10 (Military Justice), currently in effect, prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 2019 Edition, and the RCM contained in the Manual for Courts-Martial. a. Paragraph 5-42 (STR for Special and General Courts-Martial Referred on or after 1 January 2019) notes: (1) Preparation. An STR will be prepared in all cases in which an accused has been arraigned, regardless of the eventual disposition of the accused's case. The STR replaces the Report of Result of Trial for all purposes, including confinement, pay, and any other personnel action associated with the result of a trial of the accused. Unless otherwise directed by the military judge, the trial counsel will ensure that an STR, in accordance with RCM 1101 and paragraph 5-42b (Contents), is prepared in Military Justice Online so that it will be ready for review and signature by the military judge as soon as possible after the sentence is announced. Before signing the STR, the military judge will review the STR for accuracy with trial counsel and counsel for the accused. (2) Contents. In addition to the contents required pursuant to RCM 1101(a), the STR will include the following: (a) the social security number and DOD identification number of the accused; (b) an indication whether deoxyribonucleic acid processing is required in accordance with Title 10, U.S. Code, section 1565; (c) an indication whether sex offender registration is required in accordance with Title 34, U.S. Code, section 20901, et sequentes (and the following), or DODI 1325.07; (d) an indication whether the accused has been convicted of a crime punishable by imprisonment for a term exceeding 1 year (see Title 18, U.S. Code, section 922(g)(1)); (e) an indication whether any offense for which the accused was convicted is a misdemeanor crime of domestic violence (see Title 18, U.S. Code, section 922(g)(9)); (f) the date of any board of inquiry pursuant to RCM 706; and (g) an indication whether the accused was convicted of a qualifying sex-related offense that requires an assignment consideration code of L3 or L8 (see chapter 24). b. Chapter 24 (Registration of Military Sexual Offenders and Processing of Sex- Related Offenses) implements Title 34, U.S. Code, section 20901, et sequentes, and DODI 1325.07, which require military officials to notify State officials upon release of Soldiers or transfer of unconfined Soldiers who are convicted at special courts-martial or general courts-martial of sexual offenses and offenses against minor victims. Soldiers convicted of either covered offenses as set forth in appendix 4 to enclosure 2 of DODI 1325.07 or of a civilian offense that requires sex offender registration are designated as "military sexual offenders" in this chapter. 4. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the DOD and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. a. Paragraph 4-3a states an incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on the LER when credible information exists that the person or entity has committed a criminal offense. The decision to title a person is an operational, rather than a legal, determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; rather, it ensures that information in an ROI can be retrieved at some future time for law enforcement and security purposes. Judicial or adverse administrative actions will not be based solely on the listing of an individual or legal entity as a subject on the LER. b. Paragraph 4-3d states that when investigative activity identifies a subject, all facts of the case must be considered. When a person, corporation, or other legal entity is entered in the "subject" block of the LER, their identity is recorded in Department of the Army automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity or if an error was made in applying the credible information standard at the time of listing the entity as a subject of the report. It is emphasized that the credible information error must occur at the time of listing the entity as the subject of the LER rather than subsequent investigation determining that the LER is unfounded. This policy is consistent with DOD reporting requirements. The Director, CRC, enters individuals from the LER into the DCII. 5. Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of CID ROIs. It states that requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the Army Board for Correction of Military Records or other authorized agency. b. Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) contains the list of all documents approved by Department of the Army and required for filing in the AMHRR and/or interactive Personnel Electronic Records Management System. 7. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 8. DOD Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) serves as the authority and criteria for CID titling decisions. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal decision. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation. In other words, if there is a reason to investigate, the subject of the investigation should be titled. b. Judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication, the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions. Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII database is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. c. Credible information is defined as information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true. 9. DODI 5505.7 contains the following additional legal guidance. a. Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in the DCII. (This instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Section 6.3. The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and DCII in the case of mistaken identity (i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII). (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. d. Section 6.9. reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 10. DODI 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation, by DOD law enforcement organizations for inclusion in the National Crime Information Center criminal history databases. Paragraph 6 (Procedures) shows that dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal) shall also be filed. 11. The National Defense Authorization Act, Fiscal Year 2021, section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigation Reports, the DCII, and other Records and Databases), states not later than 1 October 2021, the Secretary of Defense shall establish and maintain a policy and process through which any covered person may request that the person's name, personally identifying information, and other information pertaining to the person shall, be corrected in, or expunged or otherwise removed from a law enforcement or criminal investigative report of the DCII, an index item or entry in the DCII, and any other record maintained in connection with a report of the DCII, in any system of records, records database, record center, or repository maintained by or on behalf of the Department. a. Basis for Correction or Expungement. The name, personally identifying information, and other information of a covered person shall be corrected in, or expunged or otherwise removed from, a report, item or entry, or record of the DCII, in the following circumstances: (1) probable cause did not or does not exist to believe that the offense for which the person's name was placed or reported, or is maintained, in such report, item or entry, or record occurred, or insufficient evidence existed or exists to determine whether or not such offense occurred; (2) probable cause did not or does not exist to believe that the person actually committed the offense for which the person's name was so placed or reported, or is so maintained, or insufficient evidence existed or exists to determine whether or not the person actually committed such offense; and (3) such other circumstances, or on such other bases, as the Secretary may specify in establishing the policy and process, which circumstances and bases may not be inconsistent with the circumstances and bases provided by subparagraphs (1) and (2). b. Considerations. While not dispositive as to the existence of a circumstance or basis set forth in subparagraph (1), the following shall be considered in the determination whether such circumstance or basis applies to a covered person for purposes of this section: (1) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (2) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and (3) the type, nature, and outcome of any action described in subparagraph (2) against the covered person. 12. 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. 13. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004976 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1