IN THE CASE OF: BOARD DATE: 13 March 2023 DOCKET NUMBER: AR20230002539 APPLICANT REQUESTS: an upgrade of his characterization of service from bad conduct to honorable, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record), 22 November 2019 . Self-authored letter, undated . several Certificate of Training . several Certificate of Achievement . Permanent Orders Number 124-110, 3 May 2008 . Certificate of Appreciation, June 2008 . Permanent Orders Number 177-010, 13 August 2008 . The National Society of Collegiate Scholars Certificate, 26 August 2018 . University of , Associate of Arts, 31 January 2019 . Delta Mu Delta, International Honor Society in Business, 2019 . Several character witness statement 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 states: a. He joined the U.S. Army in 2006. During basic training he was in a squad leader position. He earned multiple awards while in basic training and advanced individual training. He was assigned to Hawaii and then deployed to Iraq for 15 months. His platoon was assigned to the embassy annex in Baghdad as security forces for four months. After that assignment his platoon was assigned to Camp Fernandez in the Abu Ghraib area for four months. He was a gunner on the quick reaction force team and later joined his unit at Al Asad Base and did over the road missions. He also did two 30­day missions to Al Qaim. They were tasked with bringing supplies to the Contingency Operation Base and Forward Operation Base. Once he returned to the U.S., he was asked to go to the sergeant promotion board. He was good at his job. b. His discharge was inequitable and based on one isolated incident after three years of service without adverse action. He was not represented well during his trial. His appointed lawyer scared him into pleading guilty. He faced a 30-year sentence and instead was told to take a plea for two years. At the time his daughter was 6 years old. With regret he took the plea deal. c. Several months after the trial he received the evidence and wished he did not take the plea deal. His mistake was accepting a free laptop and not having the computer wiped clean. In his position he was unable to defend himself and denied a lot of things during the investigation. He served his country with integrity and honor, but his discharge does not reflect that. d. He has overcome prejudice and judged for his past. He uses it as motivation. He works hard for others and the community, attends church, and has several jobs. He has obtained his associate degree and a year away from receiving his bachelor’s degree with honors. (see full statement). 3. On 25 October 2006, the applicant enlisted in the Regular Army. He completed training and was awarded the military occupational specialty (MOS) 88M (Motor Transport Operator). 4. The applicant provides a Certificate of Appreciation, 9 March 2007 for selection to the Commandant’s List. 5. On 31 March 2007 the applicant was assigned to 25th Transportation Company in Hawaii. 6. He served in Iraq from 29 May 2007 to 13 August 2008. 7. The applicant provides: a. A Certificate of Achievement in recognition of excellence in service to the Task Force and the U.S. from 13 October 2007 to 18 December 2007. The certificate shows in part the applicant’s high professional standards were essential elements in the prosecution of combat operations during Operation Iraqi Freedom. b. Permanent Order Number 124-110, issued by 548th Combat Sustainment Support Battalion, 3 May 2008, which shows, in part, applicant was awarded the Drivers Badge with Component Bar with Wheel. c. A Certificate of Appreciation, for his tireless effort and dedication to the 1st Battalion, 7th Field Artillery. The certificate shows his exceptional performance and attention to detail at the entry control points and perimeter towers were instrumental to the overall successful defense of the Liberty Base Camp during Operation Iraqi Freedom 06-08. d. Permanent Order Number 177-010, which awarded him the Army Commendation Medal for meritorious service while assigned to the 25th Transportation Company in Support of Operation Iraqi Freedom 07-09. 8. A DD Form 2707 (Confinement Order), 13 July 2009, shows the applicant was confined as a result of a general court-martial for possession of child pornography. 9. General Court-Martial Order Number 8, issued by Headquarters, 8th Theater Sustainment Command, shows a Court-Martial convened on 13 July 2009. a. The applicant was arraigned, tried, and convicted of the charge Article 134, Specification 1: in that the applicant did, on or about 18 November 2008, at Helemano Military Reservation, Hawaii, knowingly possess child pornography, in violation of 18 U.S.C. Section 2252A(a)(5), which conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. b. The court sentenced him to reduction to grade of private E-1, confinement for 27 months, and a bad conduct discharge (BCD). c. The sentence was adjudged on 13 July 2009. d. On 3 November 2009, the convening authority approved only so much of the sentence as provides for reduction to the grade of private, confinement for 24 months, and BCD and, except for that part of the sentence extending to a BCD, will be executed. Additionally, automatic forfeitures, as required by Article 58(a), UCMJ, was deferred effective 27 July 2009, and deferment will be terminated on the date of action. Furthermore, automatic forfeitures will be waived for six months from this date and be paid to the accused's spouse. 10. General Court-Martial Order Number 79, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, 13 May 2010 shows the sentence has been finally affirmed. That portion of the sentence extending to confinement has been served. The automatic forfeitures required by Article 58b, UCMJ, were deferred effective 27 July 2009 until 3 November 2009. The automatic forfeitures required by Article 58b, UCMJ, were waived effective 3 November 2009 for a period of six months with the direction that the monies be paid to spouse. Article 71(c) having been complied with; the BCD will be executed. 11. On 2 July 2010, the applicant’s duty status changed from confined military authorities to present for duty. 12. The applicant was discharged from active duty on 3 September 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as the result of court-martial, other, with the issuance of a BCD Certificate. a. He completed 2 years, 8 months, and 18 days of net active service this period. b. He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with one bronze service star, Army Service Ribbon, Overseas Service Ribbon, and the Driver and Mechanic Badge -Mechanic. c. Lost time during this period under 10 U.S.C. 972: 20090713-20100930. d. He received a separation code of "JJD" and a reentry code of "4." 13. The applicant provides the following character witness statement – a. His father states, [applicant] stood up for those that could not stand up for themselves. He is a family man and a great father. The military was unjust, and applicant was misrepresented. b. His mother-in-law states, [applicant] is loving and caring, has a Christian home and involved in his community. c. states he met the [applicant] when he began dating his granddaughter in August 2010. [Applicant] informed him that he was court marshalled and charged with possession of pornography on a computer that had been given to him and that he was unaware of the content of the files of on the computer. [Applicant] is a family and God-fearing man. He deserves reconsideration. d. states she met the [applicant] when he engaged her niece. He is a family man, loving husband and father to his two daughters. He works part time at their family business. Dependable and willing to work. e. Mr. and Mrs. states the [applicant] is their nephew. He is active in the church and has moral integrity. f. Deputy with The Office of Union County states the [applicant] continues to meet his obligation in maintaining his registration with the sex offender office. Applicant is prompt in reporting updates with regard to employment and vehicle changes. g. the Lead Pastor of Ambassadors Pointe Church states he has known the [applicant] for three years. [Applicant] has served in several capacities including usher, security, and numerous volunteering programs. h. Captain states he has known the applicant since his arrival in June 2007 to the 25th Transportation Company. While deployed to Iraq the [applicant] was on several of his convoys as a driver of a Heavy Equipment Transporter. [Applicant] did not take his responsibility lightly and he remained accident free. [Applicant] was honest and sincere. He was never disrespectful and always professional. If applicant was still in the service, he would have him on his team again. i. states he was stationed with the [applicant] in Hawaii and they served together in Iraq. [Applicant] was a mentor to him and other Soldiers. After his discharge it was devastating to the platoon. j. Specialist , states she has known the [applicant] since basic training. He exalted in everything he set his mind to. [Applicant] is like a brother to her. He helped her out during her pregnancy and is her son’s godfather. The Army has not been the same since he left. 14. By regulation, 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. 15. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The 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 found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 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. 3. 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. 4. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//