IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220005747 APPLICANT REQUESTS: Upgrade of his dishonorable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), dated 3 February 2022, with self-authored statement * Character Reference Letters (10) * U.S. Court of Appeals for the Armed Forces - Supplement to Petition for Grant of Review * Brief on behalf of Appellant for the U.S. Army Court of Criminal Appeals * Table of Cases, Statutes, and other Authorities, with supporting documents (26 pages) FACTS: 1. The applicant states: a. He was called to serve as a U.S. Army Chaplain at the age of 17. As a Mexican immigrant, it would take him almost 20 years to reach that goal. He had nine years of education requirements as well as 15 years to complete the legal process of becoming a naturalized citizen. During one of his rotations to Poland, it came to his attention that he was being accused of sexual misconduct. He was under investigation by the Criminal Investigation Department for one year. The report came back with no evidence whatsoever against him, but they still took him to a General Court Martial. b. He was wrongfully convicted and sentenced to 29 months at Fort Leavenworth, KS, for crimes that he did not commit. He will always hold to the truth of his innocence, and with a clear conscience he humbly requests an upgrade to his discharge. He needs immediate medical attention due to a service-related illness. He is not a threat to society, he never has been, and he never will be. 2. The applicant was appointed as an officer in the Regular Army Chaplain Corps, on 20 October 2016, in the rank/grade of first lieutenant/O-2. 3. Before a general court-martial on 4 June 2019, at Fort Hood, TX, the applicant was found guilty of: * one specification of wrongfully behaving with undue familiarity with enlisted Soldiers, between on or about 1 June and on or about 30 June 2018 * four specifications of wrongful sexual contact * two specifications of sexual assault with various Soldiers between on or about 1 June and on or about 30 June 2018 4. The court sentenced him to confinement for 29 months, and dismissal from the service. The sentence was subsequently approved, and the record of trial was forwarded for appellate review. 5. On 30 November 2020, the U.S. Army Court of Criminal Appeals, affirmed the findings of guilt and the sentence as entered by the judgment. The conviction became final on 12 October 2021, when the U.S. Court of Appeals for the Armed Forces affirmed the judgment of the U.S. Army Court of Criminal Appeals. 6. General Court-Martial Order 24, issued by Headquarters, Department of the Army on 9 December 2021, noted that the applicant's sentence had been affirmed by the U.S. Army Court of Criminal Appeals and ordered the dismissal duly executed. 7. The applicant was discharged on 5 November 2021. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), as a result of court-martial. His service was characterized as dishonorable. He was credited with 3 years, 2 months, and 9 days of net active service this period. His DD Form 214 further shows his awards and decorations included the National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon. 8. The applicant provides the following (available in its entirety for the Board’s review): a. Character reference letters that collectively attest to his availability to others, ministry, humility, integrity, trustworthiness, diligence, and good moral character. b. Supplement to petition for grant of review, submitted to the U.S. Court of Appeals for the Armed Forces on his behalf. c. Brief on behalf of appellant, submitted to the U.S. Army Court of Criminal Appeals on his behalf. Additionally, he provides a table of cases, statutes, and other authorities with supporting documents. 9. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (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. 10. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 11. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 applicant's trial by a general court-martial was warranted by the gravity of the offense charged (wrongfully behaving with undue familiarity with enlisted Soldiers, wrongful sexual contact, and sexual assault). 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 dismissed from the service pursuant to an approved sentence of a general 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 Board determined that his service was not satisfactory, and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, clemency in the form of an honorable or general discharge is not warranted 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 600-8-24, sets forth the basic authority for officer transfers from active duty (AD) to the Reserve Component and discharge functions for all officers on AD for 30 days or more. The version in effect at the time provided that: a. An Honorable characterization of service. An officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty. b. General (under honorable conditions) characterization of service. An officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Dishonorable characterization of service. A general court-martial (GCM) may sentence a warrant officer who is not commissioned to a dishonorable discharge. d. Dismissal. A GCM may sentence a commissioned officer to a dismissal. 2. 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. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service 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// ABCMR Record of Proceedings (cont) AR20220005747 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1