IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220011177 APPLICANT REQUESTS: reconsideration of his previous request to change his character of service from bad conduct to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 14 July 2022 * Standard Business Tax License, expiration 15 May 2016 * unknown license, expiration 31 December 2019 * Master Barber License, expiration, 30 April 2019 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 AR20140006469 on 20 November 2014. 2. The applicant states he needs his characterization of service upgraded and it has been more than 20 years since his discharge. 3. On 1 November 2000, the applicant enlisted in the Regular Army. 4. The complete facts and circumstance surrounding the applicant's discharge are unknown. However, his record does contain the following evidence: a. Special Court-Martial Order Number 171, dated 27 October 2005, reads: In the general court-martial case of [applicant]... the sentence of reduction to the grade of Private E1, confinement for 30 months, and a Bad-Conduct Discharge, adjudged on 16 December 2002, ad promulgated in General Court-Martial Order Number 12, ...dated 24 September 2003, as corrected by U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 24 June 2005, has been finally affirmed... That portion of the sentence extending to confinement had been served. Article 71(c) having been complied with, the Bad Conduct Discharge will be executed. b. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)shows was discharged from active duty on 26 April 2006 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, court-martial other, with a Bad Conduct characterization of service, a separation code of JJD, and a reentry code of 4. His DD Form 214 also shows: (1) He completed 2 years, 11 months and 29 days of net active service this period with lost time from 30 August 2002 to 29 August 2004 and from 30 August 2004 to 26 February 2005. (2) He did not complete his first full term of service. 5. On 20 November 2014, in ABCMR Docket Number AR20140006469, the Board denied his request for an upgrade of his discharge. 6. The applicant provides a copy of his State Board of Cosmetology and Barber Examiners Master Barber License. 7. Regulatory guidance provides a member will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 8. In reaching its determination, the Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The specific reasons of his conviction by a general court- martial are not available. However, his DD Form 214 shows he was discharged from active duty as a result of a court-martial, with a bad conduct discharge, with 2 years, 11 months, and 29 days of net active service and with lost time from 30 August 2002 to 29 August 2004 and from 30 August 2004 to 26 February 2005. The applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of the 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 to amend the decision of the ABCMR set forth in Docket Number AR20140006469 on 20 November 2014. 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. 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. c. 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. 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. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military BCM/NRs and DRBs 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 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) AR20220011177 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1