IN THE CASE OF: BOARD DATE: 19 May 2021 DOCKET NUMBER: AR20200001342 APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 November 2019 * 52 Letters of Reference and Statements in Support of the Applicant * DA Form 2-1 (Personnel Qualification Record – Part II), dated 10 March 1981 * DD Forms 256A (Honorable Discharge Certificate) (two) * 27 Certificates of Training, Certificates of Course Completion, Promotion Certificates, Award Certificates, and Award Orders * DA Forms 1059 (Service School Academic Evaluation Report), dated 25 June 1984 and 18 July 1985 * DA Form 2166-6 (Enlisted Evaluation Report) and DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 June 1990 * 10 United Postal Service (UPS) Certificates of Appreciation FACTS: 1. The applicant did not file within the three-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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant provides no statement in support of his request. 3. The applicant enlisted in the Regular Army on 6 March 1981. He reenlisted in the Regular Army on 16 December 1983, was promoted to the rank of staff sergeant on 22 June 1986, and reenlisted again on 1 May 1989. 4. Before a general court-martial on or about 6 July 1989, at Nuernburg, Germany, the applicant was convicted, pursuant to his pleas, of the following offenses: * committing indecent acts upon the body of a female under 16 years of age, not his wife, with intent to gratify his sexual desires, between November 1988 and May 1989 * committing carnal knowledge, from November 1988 and May 1989 5. The applicant was sentenced to reduction in grade to E-1 and separation from service with a BCD. The convening authority approved the sentence and except for the BCD, ordered the sentence executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. The U.S. Army Court of Military Review affirmed the findings and sentence on 31 January 1990. 7. General Court-Martial Order Number 34, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky on 22 May 1990, noted that the approved sentence had been finally affirmed and ordered the BCD executed. 8. The applicant was discharged on 29 June 1990. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3. His DD Form 214 shows his service was characterized as bad conduct and his narrative reason for separation was "as a result of court-martial, other." 9. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 10. The applicant provides a multitude of letters of reference, supporting statements, and certificates of appreciation, all reflecting on his good character and post-service conduct. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 on a preponderance of evidence, 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 XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 June 1990, is missing an important entry that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. 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. c. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001342 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1