ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 30 March 2021 DOCKET NUMBER:  AR20200000338 
APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his dismissal from under other than honorable conditions to general, under honorable conditions. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 293 (Application for the Review of Discharge or Dismissal) . DD Form 214 (Certificate of Release or Discharge from Active Duty) . Memorandum for Record from Appellate Defense Counsel 
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 AR20090010473 on 3 December 2009. 

2. 
The applicant states he made a terrible decision and he is sorry for his actions during his time of service.  He was not mature in his decision making and he apologizes for his decision.  He was very young and he did not think about his future or the consequences of his decision in 2004. He regrets being involved in fraternization with another Soldier. That was not the right thing to do.  He has learned from his mistake and has made better decisions.  He earnestly asks for an upgrade on his DD Form 214 to “general status”. 

3. 
On 18 May 1997, the applicant was 24 years old and entered active duty.  He served as a transportation officer. He was promoted to captain on 1 December 2000. 

4. 
On 11 August 2003, in accordance with his pleas, the applicant was convicted by a general court-martial of: 


. disobeying a lawful command (to cease any contact or communications with a private) 
. failing to obey a lawful general regulation by engaging in sexual intercourse with a private (a trainee in his company) 
. conduct unbecoming an officer and gentleman, and false swearing. 
5. 
The applicant was sentenced to be dismissed from the service and to be confined for 30 days. He was placed on excess leave on 4 September 2003. On 6 November 2003, the convening authority approved the sentence. 

6. 
On 10 December 2004, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. On 28 October 2005, the Assistant Secretary of the Army (Financial Management and Comptroller) ordered the dismissal to be executed. 

7. 
The applicant was dismissed on 12 December 2005. He completed 8 years, 6 months, and 3 days of creditable active service. His DD Form 214 shows his character of service as under other than honorable conditions. His DD Form 214 shows that he was discharged under the provisions of Army Regulation 600-8-24, paragraph 5-17, for court-martial conviction. 

8. 
On 3 December 2009, the ABCMR denied the applicant’s request for an upgrade of his dismissal from the Army. On 23 June 2015, the ABCMR denied his request to correct his dismissal/discharge date. 

9. 
On 21 September 2015, the staff of the ABCMR reviewed the applicant’s request for reconsideration and determined that his request for reconsideration was not received within one year of the ABCMR's original decision. As a result, his request for reconsideration did not meet the criteria outlined in paragraph 2-15b of Army Regulation 15-185 (ABCMR), and was returned without further action. 

10. 
In support of his request for reconsideration, the applicant provides a memorandum for record from Appellate Defense Counsel dated 27 June 2005, stating: 


a. 
On 11 August 2003, the applicant was convicted by court-martial of violating Article 90 (disobedience of a lawful order), Article 92 (disobeying a lawful regulation, the Army Fraternization Policy), Article 133 (conduct unbecoming an officer based on a personal relationship), and Article 134 (false swearing) of the Uniform Code of Military Justice. The court-martial sentenced the applicant to 30 days confinement and a dismissal. 

b. 
All the charges stem from the Army's Fraternization Policy which basically prohibits officers from engaging in personal relationships with enlisted members. Essentially, the applicant permitted one of his Soldiers to stay at his house during leave and had a personal relationship with her. The charged offenses involve the same consensual relationship. The Soldier involved was older than the applicant and had 


experience in the military. Prior to the charges, the applicant had no disciplinary record and had never been cited for inappropriate conduct. To the contrary, his service record was distinguished. He deployed to both Kosovo and Korea and was recognized for his accomplishments there. 
11. 
The applicant admits he made a terrible decision and he is sorry for his actions during his time of service.  He was not mature in his decision making and he apologizes for his decision.  He was very young and he did not think about his future or the consequences of his decision in 2004.  Nevertheless, evidence of record shows the applicant, a captain who is expected to act with the highest integrity at all times, was dismissed from the service for false swearing and engaging in sexual intercourse with a private and related offenses. 

12. 
Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel. Paragraph 5-17 of this regulation states that an officer convicted and sentenced to a dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings. 

13. 
Army Regulation 600-8-24, paragraph 1-22b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to an officer whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 

14. 
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. 

15. 
In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 


BOARD DISCUSSION: 
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 to include deployments, the frequency and nature of the misconduct, the court martial proceedings and the reason for his separation. The Board did not find sufficient in-service evidence of mitigating factors to overcome the applicant's misconduct. The Board also found an absence of any post-service achievements or letters of support to weigh a clemency determination.  Based on the preponderance of evidence presented and in the records, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
:XXX :XXX :XXX 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. 
X 
CHAIRPERSON 
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): 
Not Applicable 
REFERENCES: 
1. 
Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel. Paragraph 5-17 of this regulation states that an officer convicted and sentenced to a dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings. 

2. 
Army Regulation 600-8-24, paragraph 1-22b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to an officer whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 

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 Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. 


a. 
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. 

b. 
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. 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//