IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20230008261 APPLICANT REQUESTS: an upgrade of his characterization of service from bad conduct character to under honorable conditions (general) and a personal appearance in person or via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Two DA Forms 3340-R (Request for Reenlistment or Extension in the Regular Army) * DD Form 256A (Honorable Discharge Certificate) * Oath of Reenlistment Certificate * DD Form 4/2 (Enlistment/Reenlistment Document), October 1997 * Two DD Forms 3286 (Statement of Enlistment) undated * DD Form 4/1 and 4/2 (Enlistment/Reenlistment Document), 10 October 2000 * DA Form 4789 (Statement of Enlistment to Selective Reenlistment Bonus) 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, he served two enlistments before his separation from the military due to his mistake. An upgrade to his character of service would facilitate his ability to obtain meaningful employment with the government. His trial was fair, and he takes ownership of the harm he caused. He wants to provide a better life for himself and his family and an upgrade of his bad conduct character of service would help. 3. The applicant enlisted in the Regular Army on 3 October 1994, for a 4-year period of service. 4. He executed two immediate reenlistments; the first occurred on 8 October 1997 and second on 10 October 2000; he provides his honorable discharge certificate issued on 7 October 1997. 5. His record is void of the official general court-martial orders outlining the charges for which he was convicted. 6. The applicant’s record contains a U.S. Army court of criminal appeals notice of court- martial order correction dated 14 January 2003 which shows a correction was made by amending the plea to Charge I and its Specification to read: "Plea: Not Guilty, but Guilty of a violation of Article 134." by amending the plea to Charge II to read: "Plea: Guilty. 7. General Court-Martial Order Number 345, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 17 September 2003 shows the sentence was finally affirmed. The adjudged forfeiture of all pays and allowances was deferred in accordance with Article 57a, UCMJ, on 7 June 2001. (Adjudged forfeiture of all pay and allowances was subsequently disapproved.) The automatic forfeiture of all pay and allowances required by Article 58b, UCMJ, was waived effective 28 September 2001 until the earlier date of the applicant's release from confinement or 28 March 2002. Article 71(c) having been complied with; the Bad-Conduct Discharge will be executed. 8. On 27 August 2004, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, SEC IV as a result of court-martial. His service was characterized as bad conduct, with an separation code of JJD and a reentry code of 4. He was credited with completing 8 years, 7 days, and 25 days of net active service this period, 448 days of loss time and 701 days of excess leave. This form also shows he was awarded or authorized the Army Achievement Medal and item 18 (Remarks) contains the following information or entries: * Continuous Honorable Active Service: 3 October 1994 - 7 October 1997 * Immediate Reenlistment this period 8 October 1997–9 October 2000 and 10 October 2000–29 May 2001. * “MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE” ? 9. The applicant petitioned the Army Discharge Review Board for an upgrade of his character of service and was denied. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. Regulatory guidance provides a Soldier will receive a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 12. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 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 the Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support attesting to his honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. Furthermore, the Board noted the applicant has 2 prior periods of honorable service annotated on his DD Form 214, which provides him entitlements and the ability to seek employment. 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 determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting his requested relief. The Board found the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 3. 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 :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 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 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. 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, USC, 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 Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 5. Army Regulation 15-185 (ABCMR), paragraph 2-11, states 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// ABCMR Record of Proceedings (cont) AR20230008261 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1