IN THE CASE OF: 
BOARD DATE: 17 August 2023 
DOCKET NUMBER: AR20230001556 


APPLICANT’S REQUEST:  in effect, upgrade of his dishonorable discharge to an honorable discharge, and an appearance before the Board via video/telephone. Additionally, he requests the issuance of a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows in block: 

•12b (Separation Date This Period) he was discharged on 27 August 2003

•12c (Net Active Service This Period) he served 8 years and 4 days

•12h (Effective Date of Pay Grade) a different, but unspecified date

•18 (Remarks) he completed his first full term of service

•24 (Character of Service) his characterization of service was honorable

•26 (Separation Code) his Separation Program Designator (SPD) code was "LBK"

•28 (Narrative Reason for Separation) he was separated due to completion ofrequired active service



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Joint Uniform Military Pay System (JUMPS) Leave and Earnings Statements(LES) (three)

•Orders D-08-331871, issued by U.S. Army Reserve (USAR) PersonnelCommand, Saint Louis, MO on 27 August 2003



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code(USC), 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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he desires to be issued a new DD Form 214 because aDD Form 215 (Correction to DD Form 214) will not suffice in correcting all of the errors.He needs his record corrected to clearly depict his honorable service so he may receiveall the benefits of an honorable discharge.

3.On 24 August 1995, the applicant enlisted into the Regular Army for a period of3 years in the rank/pay grade of private/E-2.

4.Although the available record is void of the relevant charge sheet, the record of trialdatabase maintained by the Judge Advocate General shows the applicant wasarraigned at a court-martial and found guilty of three Specifications of the Charge ofPremeditated Murder, in violation of the Uniform Code of Military Justice.

5.The decision of the appellate review is not present in the available record.

6.General Court-Martial Order (GCMO) Number 46 issued by the U.S. DisciplinaryBarracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth,KS on 21 September 2001, shows the guilty findings of the applicant's GCM wereaffirmed. The sentence of reduction to the grade of private/E-1, forfeiture of all pay andallowances, confinement for 45 years, and a dishonorable discharge, adjudged on16 June 1999, as promulgated in Corrected GCMO Number 25, Department of theArmy, Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, dated19 October 1999, had finally been affirmed. The accused was credited with 180 days ofconfinement against the sentence to confinement. That part of the sentence extendingto confinement had been served and the dishonorable discharge was ordered to be dulyexecuted.

7.Orders and his DD Form 214 show the applicant was discharged on 8 November2002, under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial with SPD codeJJD. His service was characterized as dishonorable. He was credited with continuoushonorable active service from 24 August 1995 through 15 June 1999. He was retainedin service 1,158 days for the convenience of the government. He was discharged in thegrade of E-1 with an effective date of pay grade of 30 June 1999, 2 weeks after hissentence was adjudged. He was not transferred to the USAR. He had not completed hisfirst full term of service.

8.The applicant sent a letter to the Secretary of the Army wherein he requested thathis sentence be substantially reduced, and that he be paroled, or be transferred back tothe U.S. Disciplinary Barracks because he was confined with foreign nationals andenemies of the U.S. On 30 September 2010, a representative of the Army Clemencyand Parole Board advised the applicant that the Rules for Courts-Martial, cited as thebasis of his request, did not apply to his case. Therefore, the Army Clemency andParole Board would take no action on his request.

9.On 8 July 2009, the applicant was issued a DD Form 215 which corrected block 18of his DD Form 214 by:

•deleting the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OFSERVICE"

•adding the entry "MEMBER HAS COMPLETED FIRST FULL TERM OFSERVICE"



10.The applicant's record contains the following documents which indicate he waserroneously retained in a Reserve status in at least one database following hisdischarge on 8 November 2002.

a.Orders D-08-331871, issued by the USAR Personnel Command, Saint Louis, MOon 27 August 2003, show he was honorably discharged from the USAR, effective 27 August 2003. The orders also indicate he was assigned to the USAR Control Group (Annual Training (AT)) at the time. 

b.Orders D-11-118507 issued by the U.S. Army Human Resources Command(USAHRC), Fort Knox, KY on 15 November 2011, show he was honorably discharged from the USAR, effective 15 November 2011. The orders also indicate he was assigned to the USAR Control Group (AT) at the time. 

c.Orders D-11-118507 issued by the USAHRC, Fort Knox, KY on 12 September2014, show he was mandatorily released from the USAR Control Group (AT) and assigned to USAR Control Group (Reinforcing), effective 12 September 2014. 

d.Orders D-09-419966 issued by the USAHRC, Fort Knox, KY on 17 September2014, show he was honorably discharged from the USAR, effective 16 September 2014. The orders also indicate he was assigned to USAR Control Group (Reinforcing) at the time. 

11.The applicant provides JUMPS LESs for the months of April, May, and June 1999which show he received no pay and allowances, had an accrued leave balance of 52.5days, and was indebted for the amount of $1983.86.

12.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, USC, Section 1552, the authority underwhich 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-martialprocess and then only if clemency is determined to be appropriate. Clemency is an actof mercy or instance of leniency to moderate the severity of the punishment imposed.

13.Army Regulation 635-200 provides that a Soldier would be given a dishonorabledischarge pursuant only to an approved sentence of a general court-martial and that theappellate review must be completed, and the affirmed sentence ordered duly executed.

14.In reaching its determination, the Board shall consider the applicant's petition,available records and/or submitted documents in support of the petition. Applicants donot have a right to a hearing before the ABCMR.


BOARD DISCUSSION: 

The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board further determined his DD Form 214, as corrected by a DD Form 215, accurately depicts his service. 


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. 

Microsoft Office Signature Line...

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, USC, Section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMRis not empowered to set aside a conviction. Court-martial convictions stand as adjudgedor modified by appeal through the judicial process, it is only empowered to change theseverity of the sentence imposed in the court-martial process and then only if clemencyis determined to be appropriate. Clemency is an act of mercy or instance of leniency tomoderate the severity of the punishment imposed.

3.Title 10, USC, Section 1552(b), provides, with respect to courts-martial and relatedadministrative records pertaining to court-martial cases tried or reviewed under theUniform Code of Military Justice (UCMJ), action to correct any military record of theSecretary's Department may extend only to actions taken by reviewing authorities underthe UCMJ or action on the sentence of a court-martial for purposes of clemency. TheSecretary of the Army shall make such corrections by acting through boards of civilianswithin the executive part of the Army.

4.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.prescribes the policies and procedures for correction of military records by the Secretaryof the Army, acting through the ABCMR. The regulation provides that the ABCMRbegins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 
 
5.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 
 a.  An honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 
 
 b.  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. 
 
 c.  A discharge under other than honorable conditions (UOTHC) is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. 
 
          (1)  An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. 
 
          (2)  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.  Examples of factors that may be considered include the following: 
 
• Use of force or violence to produce bodily injury or death  

• Abuse of a position of trust 




• Disregard by a superior of customary superior-subordinate relationships 

• Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army 

• Deliberate acts or omissions that seriously endanger the health and safety of other persons 




 
     d.  A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 
 
     e.  A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 
 
6.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, by reason of Court-Martial. 
 
7.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers at the time of retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time or release from active duty retirement or discharge. Paragraph 2-7 (Issuing and reissuing DD Form 214) stated a DD Form 214 would not be reissued, in part, except when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215. 
 
8.  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/NR) 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, 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. 
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