IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230001549 APPLICANT REQUESTS: reconsideration of his previous requests for an upgrade of his bad conduct discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-authored Statement * seven Character References 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 AR20180012341 on 7 August 2019 and Docket Number AR20210009967 on 22 February 2022. 2. The applicant states he was separated from the U.S. military with a bad conduct discharge. He sincerely apologizes for his actions. Since his release, life has been challenging and has opened his eyes. He realizes his actions do not define who he is. He has taken the opportunity to better himself and his life. He has surrounded himself with a positive mindset. Over the years he has participated in and worked in the community. He has teamed up with a colleague to start a barbershop. In his journey he has learned from his mistakes. He is still growing and learning today and is no longer the same man as he was before. He has dedicated the time to proving he can grow from his mistakes and they shouldn't define him as a person. He indicated "Other Mental Health" issues as related to his request: 3. He enlisted in the Regular Army on 12 August 2003. 4. His records contain two DA Forms 4187 (Personnel Action) showing the following changes in his duty status: * from present for duty to confined by military authorities – 12 August 2004 * from confined by military authorities to present for duty – 2 December 2004 5. Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, General Court- Martial Order Number 3, 5 March 2005, shows he was convicted of the following charges and specifications: a. Charge I: violation of Article 86 (Absent Without Leave), Uniform Code of Military Justice (UCMJ), for absenting himself from his unit without authority on or about 29 July 2004 and remaining so absent until on or about 12 August 2004; and b. Charge IV: violation of Article 128 (Assault), UCMJ: (1) specification 2, for assaulting an officer by pushing him in the chest on or about 14 July 2004; and (2) specification 4, for assaulting a noncommissioned officer by pushing him in the upper body on or about 14 July 2004. c. The sentence was adjudged on 2 September 2004. His punishment consisted of reduction to the grade/rank of private/E-1, forfeiture of $795.00 pay per month for 12 months, confinement for 175 days, and discharge from the service with a bad conduct discharge. d. The sentence was approved and except for the part of the sentence extending to a bad conduct discharge would be executed. He was credited with 136 days of confinement towards his sentence to confinement. 6. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 145, 18 May 2006, shows the sentence to reduction to the grade of private/E-1, forfeiture of $795 pay per month for 12 months, confinement for 175 days, and a bad-conduct discharge had been finally affirmed. That portion of the sentence extending to confinement had been served and the bad conduct discharge would be executed. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 on 17 July 2014 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Separations), chapter 3. He completed 10 years, 7 months, and 2 days of net active service during this period with lost time from 29 July 2004 to 2 December 2004. He was placed on excess leave for 3,486 days from 31 December 2004 to 17 July 2014. His service was characterized as bad conduct. His DD Form 214 does not reflect any individual awards or decorations. 8. The ABCMR carefully considered the applicant's requests for an upgrade of his bad conduct discharge in ABCMR Docket Number AR20180012341 on 7 August 2019 and Docket Number AR20210009967 on 22 February 2022. On both occasions, the Board determined the overall merits of the case were insufficient as a basis for an upgrade of his service characterization. 9. He provided seven-character references for consideration. a. The letter from Ms. , June 2019, states she is the Vice President of the Safe Haven Center. She has over 35 people working under her; they have been in business for over 20 years. She has a number of programs under the umbrella: a drug reentry program for those on parole, homeless shelter for the veteran, and feeding the hungry, just to name a few. She has known the applicant for over 20 years. He went to the center because he said he wanted to give back to his community and help his fellow people. He came on board and he was a godsend to them. He took charge and relieved her from the responsibilities of so many hats that she was wearing at the time. He started out working as if his life depended upon it. Working with him, he displayed such a drive to prove himself within a week until everyone in the building talked about it. Right away everyone who met him saw he was a man of great character and integrity. His relationship with his co-workers and his compliance with personal appearance was just modeling, he had no problem with authority. She saw that this was his cross to better himself and everyone who came in contact with him. She was a bit skeptical when he expressed his aspirations, but he proved to be a man whom she has great respect for and she can speak for everyone who has the opportunity to meet and work with him. He said he and his brother joined the Army to make a difference. She believed him and was proud of not just him but his family as well. b. The letter from Mr. , 22 September 2020, states he humbly and strongly requests that the applicant be given an opportunity to redeem his status and rank in the U.S. Army. He has known and worked with him and his family for years. He joined the U.S. Army to serve his country and he believes the applicant deserves a second chance. He knows from personal experience and extensive study that history is made by those who take a stand and believe in something larger than what the eyes can see. He has been working with youth for over 50 years. He wants to see the applicant's status and rank reinstated. c. The memorandum from retired Chief Warrant Officer 3 (Character Letter in Support of (Applicant)), 20 April 2021, states he feels the applicant is well deserving of a discharge upgrade. He is a 21-year combat veteran with five combat deployments to Iraq and Afghanistan. He also received three Bronze Star Medals for combat operations. He is a member of the Sergeant Audie Murphy Club and has served his country with great honor. He has known the applicant since 2003 when they were stationed at Fort Hood, TX. They became great friends and discussed certain challenges he was facing while serving in the military. His duty performance was exceptional and he possessed the leadership traits that set him apart from the rest of the Soldiers. He is a God-fearing man of great humility and showed a caring spirit for all. He always tried his best to adhere to the military standards that govern all Soldiers. He showed great respect for his superiors and peers and would have had a great future in the Army if he had not made the mistake he did. Even after this incident, his duty performance never altered and he continued to soldier-on and work hard for his comrades. He has learned from his mistakes and deserves to have his discharge upgraded so he can seek all the medical attention he needs from the Department of Veteran Affairs. After his discharge, he was able to rehabilitate and move on with his life; he became a professional licensed barber and continued to serve the community. He has also assisted hundreds of children through positive mentorship programs and being a positive role model in the community. d. The memorandum from retired Chief Warrant Officer 2 (Character Statement for (Applicant)), 5 September 2022, states he was a commissioned officer for 5 years and retired from the military in 2018. He currently works for as a sales agent and also as a small business owner. He has known the applicant for about 16 years now. The applicant has always displayed an immeasurable love, warmth, and pride toward the children he coaches, life, and family. During his interactions with him, as well as those he has witnessed with friends, family, and strangers, the applicant has always displayed a good attitude and carried himself as someone to respect and gives respect to others as well. During the time he has known him, he has never witnessed him act in an uncomplimentary manner toward his players or anyone else. He adores his children and protects them as a fierce mother bear. He has seen him nurture the young ones on his team through times that were tough and emotional for his players. He consistently educates his players about not making the same mistakes he made in life and how to be better men. Based on his interactions with the applicant, he has formed a favorable opinion about his character, and his love of life and being a great man. He is organized, efficient, competent, and has an excellent rapport with all whom he comes in contact with. He is an excellent human being inside and out. He would consider the applicant's character to be above reproach and would be proud to have him in any future endeavor. e. The letter from Ms. , 15 September 2022, states she has known the applicant as a friend and professional associate for over 20 years. She first met him at the Safe Haven Center where they worked with children as counselors. The truth be told, they were everything to those children: brothers, sisters, mothers, and fathers, even the mouthpiece of God. The Safe Haven Center is a place for a person, in fact anyone, who needs to get back on the right track so to speak. He was just an immature young man when he first got there, but after a few months he exemplified to those children and coworkers that he is a leader with great things in store. During the years she witnessed that he is man of his words. When he first started, he said he will be on time and we didn't have to wait for him. She often told the staff that if she had to leave for a few days and had to choose someone to take over, it would be the applicant, not because he's the most educated, but because of his unparalleled work ethic and passion for the children and people. f. The memorandum for record from Command Sergeant Major ((Applicant) Character Letter), 18 September 2022, states he met the applicant in the summer of 2014 at a barbershop in,. After a couple of months of getting his haircut and having conversations with the applicant, he realized they had something in common. They both loved giving back and helping out people within their community. He had the opportunity to serve with the applicant at numerous food-feeding shelters, feeding the homeless, handing out turkeys to unfortunate neighborhoods during Thanksgiving, and gift wrapping during Christmas. When coaching football, many young men looked up to the applicant as a father figure in the community. His dedication and selfless service are evident in his character and devotion to his community. g. The memorandum from Ms. ((Applicant) Military Discharge Upgrade Character Memorandum), 18 September 2022, states she retired from the Air Force on 1 October 2020 after 23 years of service. Since she has known the applicant, he has been a great man, friend, and role model in the community. She has seen him grow and evolve has a man. He has his own barbershop and he is involved with the youth in the community. He gives the young men free haircuts when the parents cannot afford to pay him. He devoted countless hours to youth sports; he always says "it is one of the ways [he] loves to give back to his community." The applicant made mistakes in his young adult life, but he has take responsibility for those mistakes that he made while in the military. He now uses those life lessons to educate the youth in hopes that they will not make the same mistakes. The military would be proud the know the applicant today and to know they played a major part in his growth as a person, man, father, and mentor. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. ABCMR 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. 2. The Board noted the applicant’s post service achievements, working in the community as an entrepreneur of a barbershop and strong character letters of support attesting to his honorable character since his discharge are very noteworthy. The Board noted the applicant accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. However, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the bad conduct discharge to a general discharge. Therefore, the Board denied relief. 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 Board found 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 AR20180012341 on 7 August 2019 and Docket Number AR20210009967 on 22 February 2022. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR members will direct or recommend changes in military records to correct an error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists in the record. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 3 stated 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. 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. 3. Title 10, U.S. Code, section 1552(f), provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230001549 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1