IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20230001606 APPLICANT REQUESTS: reconsideration of his previous requests to upgrade his bad conduct discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC95-10882, on 10 April 1996, and AR1999018479, on 17 March 1999. 2. The applicant states, in effect, a general court-martial sentenced him to confinement and a bad conduct discharge; the Army released him from Leavenworth on the condition he would deploy in support of the Gulf War. They put him on military leave without pay, and he remained on standby, ready to deploy. 3. A review of the applicant's service record reveals the following: a. On 23 June 1986, the applicant enlisted into the Regular Army for 3 years; upon completion of initial training and the award of military occupational specialty 76Y (Unit Supply Specialist), orders assigned him to a signal company at Fort Hood, TX, and he arrived at his new unit, on or about 5 November 1986. b. In January 1987, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having been absent without leave (AWOL); (the associated record of proceedings is not available for review). Effective 1 August 1987, the applicant's leadership promoted him to private first class (PFC)/E-3. On or about 29 September 1987, orders transferred the applicant to a field artillery service battery at Fort Hood. Permanent Orders, dated in October 1987, awarded the applicant the Army Achievement Medal for meritorious service between September 1986 and September 1987. c. Between August 1988 and January 1989, the applicant was AWOL twice, self- referred himself into drug abuse detoxification, failed to keep his appointments with the Fort Hood Alcohol and Drug Abuse Center, and had a positive urinalysis test for cocaine. Also during this period, a psychiatrist diagnosed the applicant with personality disorder – passive-aggressive traits; the psychiatrist determined the applicant's conditions did not warrant disposition through medical channels, and he recommended the applicant's expeditious separation. d. On 15 February 1989, a general court-martial convicted the applicant of UCMJ violations. (1) The court found the applicant guilty of the following UCMJ Articles: * Article 86 (AWOL), two specifications – AWOL, from 24 to 25 October 1988 and from 28 to 30 November 1988; the applicant pleaded guilty to both specifications * Article 134 (General Article – Uttering Worthless Checks) – 57 specifications of bad checks in amounts varying from less than $2 to $150, for a total of $2,523.25; the applicant pleaded guilty to all but one specification, and the court found him not guilty of that one specification (2) The court sentenced the applicant to 48-months' confinement, forfeiture of all pay and allowances, and a bad conduct discharge; the court immediately remanded the applicant to confinement. (3) On 23 March 1989, the general court-martial convening authority approved only so much of the sentence as allowed for 25-months' confinement, forfeiture of all pay and allowances, and a bad conduct discharge; except for the bad conduct discharge, the general court-martial convening authority ordered the execution of the applicant's sentence. e. On 11 January 1990, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence in the applicant's case. On or about 7 September 1990, the U.S. Disciplinary Barracks at Fort Leavenworth, KS released the applicant from confinement and placed him on indefinite excess leave. On 21 September 1990, the U.S. Court of Military Appeals denied the applicant's appeal and affirmed the U.S. Army Court of Military Review's earlier decision. f. On 22 April 1991, a general court-martial order announced the completion of the applicant's appellate review process and directed the execution of his bad conduct discharge; on 10 May 1991, orders discharged the applicant accordingly. His DD Form 214 shows he completed 2 years, 3 months, and 21 days of his 3-year enlistment contract; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the Army Service Ribbon and two marksmanship qualification badges. g. On 4 April 1995, the applicant petitioned the ABCMR, requesting an upgrade to general under honorable conditions. The applicant stated an upgraded character of service would help him better support his family, and he pointed out he had served honorably for 18 months prior to his misconduct. On 10 April 1996, the Board voted to deny relief, noting that, while the Board empathized, the applicant's personal circumstances were insufficient to warrant an upgrade. h. On 5 March 1998, the applicant requested the Board's reconsideration of its previous decision. (1) The applicant argued his separation was unjust because his leadership had sought to make him an example, and, while he admitted he had made a mistake, the applicant felt he had suffered long enough from the consequences of his discharge. (a) The applicant additionally maintained he had done a good job in his MOS prior to the court-martial, and, as a result, his command had awarded him with an Army Commendation Medal. With the upgrade, he would be able to secure better jobs, and he noted that, prior to entering the Army, he worked in the Post Office; with the Board's help, he could be rehired. (b) In support of his request, the applicant provided a letter of support stating he had successfully completed a culinary course; a Department of Veterans Affairs letter confirming his dates of service and type of discharge; and a local records check showing he did not have a criminal history. (2) On 17 March 1999, Board again voted to deny the applicant's request. Apart from confirming the applicant's pre-service employment by the U.S. Postal Service, the Board determined that the number of worthless checks written by the applicant could not be characterized as a "mistake." While both the applicant's pre-conviction duty performance and his post-service behavior were commendable, neither outweighed the offenses to which the applicant had pleaded guilty. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Per Title 10, U.S. Code, section 1552, the ABCMR is not empowered to set aside a conviction. Rather, the law only authorizes the Board 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. 5. 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. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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. The Board noted, the applicant provided insufficient evidence of post- service achievements or character letters of support that could attest to his honorable conduct that might have justified his actions to mitigate the applicant’s discharge characterization. 2. The Board found the number of worthless checks issued by the applicant is more intentional than a mistake. The Board recognized the applicant’s 18 months of honorable service prior to his misconduct. the Board agreed, the applicant’s actions impacted not just him but many other based on his actions. 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. Therefore, relief was denied. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, 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 AC95- 10882, on 10 April 1996, and AR1999018479, on 17 March 1999. 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. ? ADMINISTRATIVE NOTE(S): 1. Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all authorized awards and decorations. 2. PO awarded the applicant the Army Achievement Medal. 3. Based on the foregoing, amend the applicant's DD Form 214, ending 10 May 1991, by adding the Army Achievement Medal. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that, with respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of a Secretary's Department may only extend to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 3-11 (Bad Conduct Discharge). A Soldier received a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate authority must have completed the review process, and the affirmed sentence ordered duly executed. c. Section II (Secretarial Authority), chapter 5 (Separation for the Convenience of the Government), AR 635-200 (Personnel Separations – Enlisted Personnel) stated the separation of Soldiers was the prerogative of the Secretary of the Army. Except as otherwise delegated, such separations only occurred by the Secretary's authority, and were to be based on a determination that the separation was in the best interests of the Army. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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) AR20230001606 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1