IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220009712 APPLICANT REQUESTS: Reconsideration of his previous appeal for upgrade of his already upgraded discharge to an honorable. Additionally, he requests correction of his separation date on his DD Form 214 (Certificate of Release or Discharge from Active Duty), to reflect his Expiration Term of Service date. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 Numbers: * AR2001056089 on 20 September 2001 * AR20180011218 on 1 October 2020 2. As a new argument, the applicant states correction should be made because he was not given the opportunity to retire at 15 years with the downsizing of the Army. 3. The applicant enlisted in the Regular Army on 20 October 1981. Upon completion of training, he was awarded military occupational specialty 75B (Personnel Administration Specialist). He reenlisted on 19 December 1986 and 29 July 1991. The highest grade he attained was E-5. 4. The applicant served in Southwest Asia from on or about 26 September 1991 to 2 February 1992. 5. Before a general court-martial at Kaiserslautern, Germany on 18 November 1993, the applicant was found guilty of: * three specifications of wrongfully making and uttering worthless checks in excess of $100 * one specification of obtaining services under false pretenses, with intent to defraud, in excess of $100.00 The court sentenced him to a bad conduct discharge (BCD) and reduction to E-1. The sentence was approved on 25 March 1994, and the record of trial was forwarded for appellate review. 6. On 12 April 1994, the applicant was placed on excess leave. 7. The U.S. Army Court of Military Review affirmed the findings and sentence on 31 August 1994. 8. General Court-Martial Order 18, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 27 February 1995, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 9. On 18 April 1995, Headquarters, U.S. Army Armor Center, Fort Knox, KY, published Orders 108-00206 ordering his discharge from active duty effective 20 April 1995. 10. The applicant was discharged on 20 April 1995. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial (Separation Code JJD, Reentry Code 4). His service was characterized as bad conduct. He was credited with 13 years, 6 months, and 1 day of net active service this period. He was awarded or authorized: * Southwest Asia Service Medal with 2 Bronze Stars * Army Commendation Medal * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon with Numeral 2 * Expert Marksmanship Qualification Badge with Hand Grenade * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Kuwait Liberation Medal 11. The applicant petitioned the ABCMR for consideration of his request to have his BCD upgraded. On 20 September 2001, the Board voted to deny relief and determined he failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. 12. The applicant petitioned the ABCMR a second time for consideration of his request. On 1 October 2020, the Board voted to grant relief and determined the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by re­issuing the applicant a new DD Form 214, for the period ending 20 April 1995, to show the characterization of service as "Under Honorable Conditions (General)." 13. On 30 March 2021, the applicant was issued a new DD Form 214 reflecting his character of service as under honorable conditions (general). 14. 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. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 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. a. The evidence shows a general court-martial convicted the applicant of three specifications of wrongfully making and uttering worthless checks and one specification of obtaining services under false pretenses, with intent to defraud. The adjudged and approved sentence is a bad-conduct discharge and reduction to E-1. 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 special 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. b. The evidence of record also shows the Board previously considered his application and initially denied him an upgrade. However, on reconsideration, the Board determined that based on the lengthy period of honorable service and the misconduct involved, the Board concluded the punishment of a bad conduct discharge was too harsh and warranted an upgrade. Therefore, the Board recommended upgrading the applicant's characterization of service to General, Under Honorable Conditions. As such, he was issued a new DD Form 214 reflecting his upgraded discharge to general. In his current application, the applicant provides no new evidence to show an error or an injustice. He also provides no evidence of post discharge achievements or character reference letters in support of a clemency determination. Therefore, 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. c. The applicant’s service was terminated by his conviction by a general court- martial. He requested and was placed on excess leave from 13 April 1994 to 20 April 1995, pending a review by the appellate authority. Once the appellate review was completed, he was discharged on 20 April 1995 and that is the date that is shown on his DD Form 214. Based on a preponderance of evidence, the Board determined that the separation date he 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: 1. As for the issue being reconsidered, 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 Numbers AR2001056089 on 20 September 2001 and AR20180011218 on 1 October 2020. 2. As for the new issue of his separation date, 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 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. 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. d. The general court-martial convening authority will determine whether retention or release from military control, or release from active service is warranted. Paragraph 1- 31 provided that the discharge of a Soldier is effective at 2400 hours on the date of notice of discharge. 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 Board for Correction of Military/Naval Records (BCM/NR) 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, 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) AR20220009712 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1