IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220006324 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded and a person appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 although he appealed his general court-martial, he was not successful. The issue at hand was that he was charged with adultery while he was legally separated from his wife. He admitted to the relationship, but in his legal separation document it explicitly stated that both parties could live their lives as if they were single. 3. The applicant enlisted in the Regular Army on 22 January 1979. He completed training with award of military occupational specialty 71M (Chaplain Assistant). He had immediate reenlistments on 21 July 1983, 15 November 1988, and 16 July 1993. He attained the rank/grade of sergeant first class/E-7 on 1 June 1991. 4. The record contains no evidence of any adverse action prior to the incidents that led to the applicant's receipt of two Letters of Reprimands (LORs). On 5 April 1993, he received a LOR for: * on 11 November 1992, abuse of his rank and duty position by soliciting a corporal to sign a credit application on the behalf of his commander * on 12 December 1992, forging the corporal’s signature to similar documents, essentially representing to a lending institution that his signature was the commander’s signature * during February 1993, as a married man, "dated" a married woman not his wife * on 12 February 1993, members of the community noticed his affectionate behavior toward another man’s wife during a community social * on 14 February 1993, he went on a "date" with this same married woman to a public pool * youth within the community also saw this married woman enter his quarters on more than one occasion * his public infidelity adversely impacted the morale and efficiency of the community youth services staff 5. The applicant received a LOR on 8 July 1993, for: * knowingly and falsely stating to his supervisor that he had "turned in" a military vehicle dispatched to his duty section * during a briefing about medical evacuation procedures, he knowingly and falsely stated that he was not pending any Uniform Code of Military Justice (UCMJ) action * on 14 May 1993, wrongfully appropriating his section's military vehicle and drove it from Wuerzburg to Frankfurt, then called and solicited a corporal to return the vehicle for him 6. General Court-Martial Order Number 74, issued by Headquarters, Leiqhton Barracks, Wuerzburg, Germany on 5 October 1993, found the applicant guilty of indecent act, adultery, making a false official statement, and uttering 22 worthless checks. His sentence included reduction to the grade of E-1, confinement for 30 months, and to be discharged from the service with a BCD [first page not available]. The sentence was adjudged on 16 July 1993. 7. The sentence was approved on 5 October 1993, and the record of trial was forwarded for appellate review. 8. Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, Orders Number 166-551, dated 15 June 1994, noted the applicant had completed his sentence on 1 July 1994, and was released on commander's parole. 9. The U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 7 December 1994. The Court indicated that two of the issues raised by the appellant's counsel warranted brief discussion. a. The appellant submitted that the trial counsel became the accuser when the adultery specification was redrafted to allege that the appellant was "a married man." On 21 June 1993, the trial counsel noticed the original adultery specification was defective. The specification alleged that the appellant “wrongfully had sexual intercourse with [a named female], a woman not his wife," but failed to allege the appellant was "a married man." To remedy this the trial counsel asked the noncommissioned officer-in- charge (NCOIC) of the criminal law section of the Office of the Staff Judge Advocate to review the court-martial packet with a "new" adultery charge that included the words "a married man," and, if he could, to become the accuser on the new charge. Although the NCOIC did so, he testified that he was not ordered to become an accuser. The appellant submits that, under these particular circumstances, the trial counsel's "asking" equated to an order and, thus, the trial counsel was disqualified because he was the accuser. The staff advocate judge was called to testify with respect to the referral of the new adultery specification and as to the disposition of the original adultery specification. b. The Court agreed with the military judge's ruling that the trial counsel did not violate Rule for Courts-Martial 502(d)(4) (A) (R.C.M.], and that the NCOIC met the requirements of R.C.M. 307. They find no prejudice to the appellant and that any arguable error with respect to the referral, investigation, and preferral of the "new" adultery specification was waived by the appellant's provident plea of guilty thereto. c. The Court agreed, in part, with the defense appellate counsel's contention as to the sufficiency of the evidence to support a finding of guilty with respect to Specification 1 of the Additional Charge (making and delivering six worthless checks). With respect to Specification 1 of the Additional Charge, the Court did not find beyond a reasonable doubt that the appellant had the necessary intent to defraud or deceive, as required by Article 123a. The Court did find, beyond a reasonable doubt, as to this specification, that when the appellant made and uttered the six checks therein, he exercised the bad faith or gross indifference required for the lesser offense of dishonorably failing to maintain sufficient funds in violation of Article 134, UCMJ. d. The Court considered the remaining assignments of error, to include those personally raised by the appellant, and found them without merit. 10. General Court-Martial Order Number 167, issued by Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KS on 6 November 1995, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 11. The applicant was discharged on 8 December 1995, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial. He was discharged in the grade of E-1 and his service was characterized as bad-conduct. He completed 14 years, 6 months, and 23 days of net active service this period with three periods of lost time totaling 234 day and 512 days in excess leave. a. He was awarded or authorized: Army Commendation Medal, Joint Service Achievement Medal, Good Conduct Medal (4th award), National Defense Service Medal, Army Achievement Medal (3rd award), NCO Professional Development Ribbon with numeral 2, Army Service Ribbon, Overseas Service Ribbon, and the Driver and Mechanic Badge. b. Block 18 (Remarks) listed his continuous honorable service from 22 January 1979 to 15 July 1993. 12. 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. 13. 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. 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 applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the applicant was tried by a general court-martial for indecent act, adultery, making a false official statement, and uttering 22 worthless checks. His sentence included reduction to the grade of E-1, confinement for 30 months, and to be discharged from the service with a BCD. His trial by a general court-martial was warranted by the gravity of the offense charged. He was given a bad conduct discharge 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 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 :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, USC, 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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. 3. Army Regulation 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 Soldiers 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. The service of Soldiers sentenced to a BCD is to be characterized as bad conduct. 4. 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. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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.) AR20220006324 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1