IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220006460 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his bad conduct discharge (BCD) to a more favorable discharge. Additionally, he requests: * restoration of his rank and back pay * payment for temporary duty (TDY) expenses APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (two), with self- authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Printout of court-martial charges FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number on 26 April 2019. 2. In a new argument, the applicant states he is seeking clemency and waiver of the time limit. His attorney suggested he plea out to avoid maximum confinement time of 5 years. While attending the Basic Non-Commissioned Officer (NCO) Course at Fort Lee, VA, he did not have access to the dining facility. He would take cabs and go elsewhere for meals. When he returned to Germany he completed his travel voucher, claiming cab rides, two meals per day, and meals for the duration of his TDY. The finance office gave him a check, and nothing was said. Soon after he was charged with fraud. He was not properly advised on how or what he needed to do to complete his travel voucher. He was not trying to steal money or anything from the Army. 3. On 26 January 1984, the applicant enlisted in the Regular Army for a 3-year service obligation. Upon completion of training and award of military occupational specialty (MOS) 76Y (Unit Supply Specialist), he was assigned to Fort Bliss, TX. 4. The applicant reenlisted in the Regular Army on 30 July 1986, for 4-years. On 4 September 1987 he extended his term of service by five months to complete his overseas tour to Germany. 5. The applicant was promoted to the rank/grade of staff sergeant/E-6 on 1 May 1989. 6. Before a general court-martial on 6 December 1990 in the Federal Republic of Germany, the applicant was found guilty of the following violations of the Uniform Code of Military Justice (UCMJ): * one specification of making a false claim against the U.S. in the amount of $3,573 for TDY expenses of which $1,755 for taxicab rides, known to be false and fraudulent on 2 March 1990 * one specification of larceny of funds, the property of the U.S. Government valued at $1,755 on 5 March 1990 * two specifications of wrongfully and unlawfully making a false sworn statement under oath on 13 March 1990, and wrongfully endeavoring to influence testimony of a witness on an unknown date in April 1990 7. The court sentenced him to 18 months of confinement, forfeiture of $300 per month for 18 months, reduction to private/E-1, and separation from service with a BCD. The sentence was approved on 15 March 1991, and the record of trial was forwarded for appellate review. 8. The U.S. Army Court of Military Review approved the findings and sentence on 20 August 1991. 9. General Court-Martial Order Number 2, issued by the U.S. Army Correctional Brigade, Fort Riley, KS, on 15 January 1992, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 10. On 14 February 1992, the applicant was discharged. 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. His service was characterized as bad conduct (Separation Coded JJD, Reentry Code 4). He was credited with completing 4 years, 4 months, and 5 days of net active service. He was awarded or authorized the: Army Achievement Medal (2nd Award), Army Good Conduct Medal (2nd Award), NCO Professional Development Ribbon (2nd Award), Driver Badge, and the Expert (M-16) Rifle Badge. His DD Form 214 listed his continuous honorable service from 26 January 1984 to 29 July 1986. 11. On 24 January 1996, the Board considered his request for an upgrade of his discharge but found no error or injustice. The Board denied his request. 12. On 26 April 2019, the Board reconsidered his request for an upgrade of his discharge, and after review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant's contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 13. The applicant provides a copy of his record review for court-martial charges imposed on 6 December 1990 and 23 August 1991; the determination is dated 12 February 2021. 14. 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. 15. 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: 1. 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 (making a false claim against the U.S. Government, larceny of funds, unlawfully making a false sworn statement under oath, and wrongfully endeavoring to influence testimony of a witness). 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 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 determine 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. 2. The applicant did not explain or provide supporting evidence related to his issue of restoration of rank and back pay. He was convicted by a court-martial and the resultant sentence was 18 months of confinement, forfeiture of $300 per month for 18 months, reduction to private/E-1, and separation from service with a BCD. The sentence was approved on 15 March 1991, and the appellate authority affirmed the findings of guilty and the sentence. The applicant was separated as an E-1 and there is no evidence that this rank is in error. 3. Regarding the issue of payment for temporary duty (TDY) expenses, the Board corrects military records, it is not a pay master. If as a result of a record correction a member owes money, or is entitled to a refund, the decision impacting finances is transmitted to DFAS for payment or collection. The applicant does not provide a TDY travel order or authorization, receipts, or a completed travel voucher for the expenses he claims, or evidence that he submitted his completed travel voucher to his servicing finance office and was denied payment. ? 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: 1. Regarding the discharge upgrade, except for the correction addressed in Administrative Note(s) below, 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 to amend the decision of the ABCMR set forth in Docket Number on 26 April 2019. 2. Regarding the issues of restoration of his rank and back pay and payment for temporary duty (TDY) expenses, 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks): SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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. 2. 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. 3. 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) AR20220006460 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1