IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220008218 APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD). 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) * Self-authored Letter * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 31 January 1995 * DD Form 214, for the period ending 25 May 1987 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 that in roughly 12 years of service, he received Good Conduct medals. He was never written up for any disciplinary actions the entire time, excluding one incident. He was wrongly charged for something that he did not do. He does not know why this happened. He does not want to believe that the government would use him as a scapegoat. He feels like he was the only one who could be punished for this. In hindsight, he now understands his part in this. He made a tragic mistake and feels he has paid for this fully. He is asking the Army to help right this wrong and allow him to regain his rights and benefits as a Veteran. He served proudly and loved being in the Army. He had every intention of retiring with twenty plus years on his service record. He is only guilty of making a bad decision by trusting someone he did not really know, which then ruined his career in the Army. He has tried with his limited resources to give to his community and to his church. He humbly requests this one thing to help him at this point in his life. He thanks the Board for their time and consideration. 3. The applicant enlisted in the Regular Army on 26 July 1984, he was honorably released from active duty on 25 May 1987. He was issued a DD Form 214 for this period of service. He was credited with 2 years and 10 months of net active service this period. 4. After a break, the applicant enlisted in the Regular Army on 31 March 1988 for 4 years, in pay grade E-4. He reenlisted on 5 July 1989 and he was promoted to sergeant/E-5 on 1 March 1990. 5. Before a general court-martial that convened by Commander, V Corps, on 7 May 1993, at Frankfurt, Germany, the applicant was found guilty and convicted of one specification of larceny of Army Air Force Exchange Service property of a value of about $7,978.95 from 8 June 1991 to 20 August 1992. 6. The court sentenced him to discharge from the service with a BCD, confinement for 15 months, forfeiture of all pay and allowances, and reduction to the grad of E-1. The sentence was approved on 17 July 1993, and the record of trial was forwarded for appellate review. 7. The U.S. Army Court of Military Review affirmed the findings and sentence on 10 May 1994. 8. General Court-Martial Order 290, issued by Headquarters, U.S. Army Center and Fort Knox, Fort Knox, Kentucky, on 27 December 1994, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 9. The applicant was discharged on 31 January 1995. His DD Form 214 confirms 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 Code JJD, Reentry Code 4). He was credited with 5 years, 10 months, and 22 days of net active service this period. The Remarks block listed his continuous honorable service from 31 Marc 1988 to 4 July 1989. He was awarded or authorized the: * Good Conduct Medal (2nd Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon (Primary Level) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Expert Qualification Badge, M-16 Rifle 10. 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. 11. 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: 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 Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The evidence shows a general court-martial convicted the applicant of larceny. The adjudged and approved sentence is a bad-conduct discharge and reduction to E-1. The evidence shows his trial by a court-martial was warranted by the gravity of the offense charged. His conviction and discharge were affected 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. The applicant does not provide any evidence of post-service achievements or letters of reference to support 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, U.S. 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 ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. An under other than honorable conditions discharge is for members who submit a resignation or requests discharge for the good of the service, understanding they may be issued an undesirable discharge without board action. d. Chapter 3, section IV provided that a member 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. 3. 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. 4. 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) AR20220008218 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1