IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230000537 APPLICANT REQUESTS: a reconsideration of his previous request for an upgrade of his character of service from under other than honorable conditions (UOTHC) to honorable. 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), 27 January 2020 * Enlisted Record Brief (ERB), 26 September 2001 * Polygraph Examination Report, 6 November 2001 * Memorandum to update forms, 4 June 2002 * Four (4) Commanders Report of Disciplinary or Administrative Action * Memorandum for Witnesses, 13 August 2002 * Character reference * Armed Service Vocational Aptitude Batter (ASVAB) Score Sheet * Polygraph interview * Department of the Army Report of Results of Trial, 23 October 2002 * General Court-Martial Order Number 4, 6 February 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 14 September 2005 * Department of the Treasury letter, 3 January 2017 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 AR20140012401 on 26 February 2015. 2. The applicant states, in effect, he received an unfair and unjust conviction and requests a discharge upgrade. He never received any Article 15's or had been counseled, this was his first time getting into trouble. During the trial, there was evidence that he was innocent of all charges, however he was found guilty without evidence of any wrongdoing and received a harsh punishment. 3. The applicant enlisted in the Regular Army on 24 July 1997, for a period of 3 years and subsequently reenlisted on 29 June 2000, for a period of 3 years. He held the rank of Specialist (SPC)/E-4. 4. The applicant provides his legal separation packet, for the Board's full review, which include a polygraph examination report, memorandum for update of forms, Commander's Report of Disciplinary or Administrative Action, witness request, statement from spouse, ASVAB scoring sheet, and an interview questionnaire. 5. A DA Form 4430-R (Department of the Army Report of Results of Trial) and General Court-Martial Order Number 4, dated 6 February 2003 show: a. The applicant was arraigned at a general court-martial and found guilty of the following specification(s): (1) Conspiring with a noncommissioned officer by altering a public record by changing his (the applicant's) General Technical (GT) score on an ERB and giving him $60 to do so. (2) Making a false official statement with the intent to deceive to a commissioned officer that he had not paid money to change his GT score. (3) Willfully and unlawfully altering a public record, an ERB, by changing the GT score. (4) Attempted bribery of a private first class in the enlisted records section. (5) Signing an official record, with the intent to deceive, a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters) stating his wife was living in San Francisco, CA, which he knew to be totally false. (6) Stealing U.S. currency of a value of about $14,514.57, the property of the U.S. Government, by wrongfully receiving basic allowance for housing (BAH) which he was not entitled to. b. The sentence imposed was reduction to Private (PVT)/E-1, confinement for 2 years, and discharge from the service with a bad-conduct discharge. c. The sentence was adjudged on 24 October 2002. 6. General Court-Martial Order Number 28, dated 5 February 2004, published by Department of the Army, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, states the sentence of bad-conduct discharge has been upgraded to a Under Other than Honorable Conditions (UOTHC) discharge effective 7 August 2003, in accordance with the action of the Army Clemency and Parole Board. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 September 2005, under the provisions of Army Regulation 635- 200 (Active Duty Enlisted Administrative Separations), by reason of court-martial, other, in the rank/grade of PV1/E-1. His service was characterized as UOTHC. His DD Form 214 additionally shows: * item 12c (net active service this period) – 6 years, 1 month and 10 days * item 26 (separation code) – JJD * item 27 (reentry code) – 4 * item 29 (dates of time lost during this period) – 24 October 2002 through 23 October 2004 8. On 26 February 2015, the ABCMR considered the applicant's request for an upgrade of his characterization of service, the Board denied his request stating the evidence presented does not demonstrate the existence of a probable error or injustice, the Board determined that the overall merits of the case were insufficient as a basis for correction of the records. 9. He provides a letter from the Department of the Treasury stating, in effect, the applicant owes the agency a delinquent debt and his social security benefit payments will be reduced until his debt is paid or otherwise resolved. 10. Regulatory guidance in effect at the time provided a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed and affirmed before the sentence is duly executed. 11. 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. 12. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. 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. This board is not an investigative body. The Board determined despite the absence of evidence in the applicant’s separation records showing an error, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of an injustice warranting a discharge upgrade. Furthermore,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 under other than honorable conditions (UOTHC) discharge to an honorable 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 AR20140012401 on 26 February 2015. 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 (AR) 635-200, in effect at the time, provides for the orderly administrative separation of Soldiers in a variety of circumstances. In addition, it maintains standards of performance and conduct through characterization of service in a system that emphasizes while still providing the suitability of persons to serve in the Army on the basis of their conduct and the ability to meet required standards of duty performance and discipline. a. Chapter 3 – This is the chapter that provides guidance and information on the information as it relates to the character of service and the description of separation. Characterization at separation will be based upon the quality of the Soldier's service, including the reason for the separation and guidance, subject to the limitations under the assorted reasons for separation. Paragraph 3-7 addresses characterization of service as follows: (1) Honorable discharge is appropriate when the quality of the Soldier’s service 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. An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. (2) Under honorable conditions (General) is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A General discharge may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. (3) Under other than honorable conditions discharge is an administrative separation from the Service. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances when the reason for separation is based on a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. In addition, when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army is another valid circumstance. Some examples provided by the regulation are disregard by a superior or customary superior-subordinate relationships. An under other than honorable conditions discharge will be directed by a commander exercising general court-martial authority. b. AR 635-200, paragraph 3-11, states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. c. AR 635-200, paragraph 1-13, states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest grade per AR 600-8-19, chapter 10. 2. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 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) AR20230000537 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1