IN THE CASE OF:   
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20230001595 
 
 
APPLICANT REQUESTS: upgrade of his dishonorable discharge. Additionally, he requests an appearance before the Board via video/telephone. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Character Letters (two) 


 
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 requests an upgrade so that he may be able to pay his debts. He did time for the crime, 22 months at Fort Leavenworth, KS. The correction should be made to better his life and for him to be more successful. 
 
3.  The applicant enlisted in the Regular Army on 7 August 1978 for three years. His military occupational specialty was 36K (Tactical Wire Operations Specialist).   
 
4.  The applicant served in Germany from 15 November 1978 through 19 March 1979. 
 
5.  The applicant was accused in a pending court martial of attempted rape. On 14 March 1979 he offered to plead guilty. In making the offer he stated: 
 
• he was satisfied with his defense counsel  

• he had not been coerced into making this plea 

• he understood he could withdraw the plea of guilty at any time before sentence was announced 

• his defense counsel had advised him of the meaning and effect of his guilty plea and punishments 

• the offer was accepted on 16 March 1979 


6.  Before a general court martial on 20 March 1979, the applicant was convicted of attempted rape on or about 22 December 1978. The court sentenced him to confinement at hard labor for two years, reduction to private/E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The sentenced was approved on 22 May 1979. The supervisory review was completed on 24 October 1979. 
 
7.  The applicant was confined by military authorities. His duty status was changed to hospital on 23 July 1979; however, the duty status change was deleted on 31 July 1979. He did not go to the hospital as had been erroneously reported.  
 
8.  The available record is void of the appellate review. However, General Court Martial Order 554, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 24 October 1979, was affirmed and the sentence was ordered to be duly executed. 
 
9.  The applicant was discharged on 17 April 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel), paragraph 11-1, with Separation Code JJD [as a result of court martial]. His service was characterized as dishonorable. He completed 7 months and 23 days of net active service. He lost time from 20 March 1979 to 17 April 1980. 
 
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.  The applicant provides character letters in support of his request that attest to him being a kind, responsible, respectful, and hardworking person who follows through on everything he commits to. He is always willing to help others and has a very mild manner. He deserves to get his compensation. 
 
12.  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: 
 
1.  The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 applicant's trial by a general court-martial was warranted by the gravity of the offenses charged (attempted rape). 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 separated pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. The Board determined 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 or a change to the reason for separation is not warranted in this case.   
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  9/12/2023

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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 
 
2.  Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.   
 
     a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.   
 
     b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
3.  Army Regulation (AR) 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.  Paragraph 11 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. 
 
4.  Title 10, U.S. Code, Section 1552, 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 Uniform Code of Military Justice (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. 
 
5.  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 (BCM/NRs) on 25 July 2018, 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//