IN THE CASE OF: BOARD DATE: 27 August 2021 DOCKET NUMBER: AR20200009491 APPLICANT REQUESTS: * Upgrade his under other than honorable conditions discharge to honorable * In effect, amend items 25 (Separation Authority), 26 (Separation Code (SPD), and 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 19 October 2005, so that those items reflect a separation based on "Secretarial Authority" * In effect, change his uncharacterized character of service, issued on 11 April 2000, to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * Two DD Forms 214 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * New York Army National Guard (NYARNG) separation orders * U.S. Army Court of Criminal Appeals Certification * General Court-Martial Order * Department of Veterans Affairs (VA) Rating Decision FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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. Counsel states the applicant's character of service and narrative reason for separation require correction. a. Statement of Facts. (1) The applicant enlisted into the NYARNG on 28 October 1999 as an M1 Armor Crewman (military occupational specialty (MOS) 19K), and he served in his home unit following the completion of initial entry training (IET). After the terrorist attacks on 11 September 2001, the applicant volunteered to enter the Regular Army; the NYARNG honorably discharged the applicant, effective 26 September 2001. (2) The applicant served honorably and with distinction while in the Regular Army, and his service included a deployment to Iraq to support Operation Iraqi Freedom. Although the applicant's service record is void of many pertinent documents, counsel states the record establishes a general court-martial convened, at Fort Stewart, GA, to addresses alleged violations of Article 81 (Conspiracy to Commit Larceny); Article 121 (Larceny of Government Property, valued at more than $500); and Article 108 (Wrongful Disposing of Government Property, valued at more than $500). The applicant pled not guilty, but the court convicted him of all charges; on 2 December 2004, the court sentenced the applicant to 60-days' confinement, a fine of $6,000, reduction to private (PV1)/E-1, and a bad conduct discharge. (3) Following the applicant's appeal, the general court-martial convening authority disapproved the findings of guilt and the sentence. However, rather than re-litigating the case, the applicant chose to submit a request for discharge in lieu of court-martial, and the convening authority approved that request. On 19 October 2005, the Army discharged the applicant under other than honorable conditions; his DD Form 214 listed the SPD as "KFS" and the narrative reason for separation as "In Lieu of Trial by Court- Martial." At separation, the applicant had completed a total of 3 years, 11 months, and 19 days of active duty service. b. Argument. (1) Counsel includes arguments that address the timeliness of the applicant's request for relief, the Board's jurisdiction, and the legal standards for a discharge review. (2) On the issue of equity, counsel argues the Board should upgrade the applicant's character of service because of extenuating factors of which the Army had no knowledge at the time of the applicant's separation. Specifically, the applicant had incurred post-traumatic stress disorder (PTSD) due to combat-related trauma sustained while deployed in Iraq; on 2 October 2019, VA awarded the applicant a 70 percent disability rating for his PTSD. In further support of his contentions, counsel cites Department of Defense's (DOD) published guidance on equity, injustice, and clemency and points to what he describes as the applicant's "precipitous decline in expected behavior and military bearing following his deployment to Iraq." Counsel argues the applicant's experiences during deployment ultimately had a "compounding negative effect" on his thought processes and decision-making abilities. Counsel asserts, when the applicant committed the offense of stealing government property (MREs (Meals Ready-to-Eat)), he did not believe he was doing anything wrong. The applicant stated he had retrieved the MREs from a dumpster, and senior noncommissioned officers were aware of what he was doing; it was not until his command initiated a formal investigation that the applicant realized his leadership considered what he had done a crime. (3) Counsel declares the applicant's character of service has both harmed him and caused others to stigmatize him, and counsel cites three examples of case law in support of his contentions; counsel argues, "The unambiguous language of these (three) decisions demonstrates the mentality of how an other than honorable conditions discharge is viewed by individuals outside of the military." Counsel maintains the applicant is repentant about his misconduct, and he still speaks proudly of his military service, despite feeling haunted by his adverse discharge. Counsel states the applicant served honorably in Operation Iraqi Freedom, but his character of service will effectively rob him of recognition as a Veteran; the applicant will not be eligible for a military funeral and his family will not receive the honor of a folded flag. These are consequences the applicant finds intolerable. (4) In spite of the barriers he faced, the applicant has continued to better himself; he has started two companies, and, in 2008, he accepted a position with a company that handles repossessions. The company has since promoted him to oversee one of the corporate offices. Further, the applicant is a dedicated family man; he is married and has three children. c. Conclusion. Counsel contends, in light of the facts and arguments, the Board should grant the applicant's request for relief; the applicant's service has left him permanently disabled and his character of service has unjustly labeled and stigmatized him. The applicant merits the Board's favorable consideration. 3. Counsel provides documents from the applicant's official military personnel file and a VA Rating Decision, dated 2 October 2018, which shows VA awarded the applicant a 70 percent disability rating for PTSD. 4. The applicant's service records and evidence submitted by the applicant show: a. According to the NGB Form 22 provided by the applicant, he enlisted into the NYARNG for 8 years, effective 29 September 1999. On 28 October 1999, the applicant entered initial active duty for training (IADT) to complete IET; on 11 April 2000, following the award of MOS 19K, orders relieved the applicant from active duty, with an uncharacterized character of service, and returned him to his NYARNG unit. b. On 28 August 2001, the applicant requested authorization to enlist into the Regular Army; NYARNG orders, submitted by the applicant, show the NYARNG honorably discharged the applicant, effective 26 September 2001, because he was enlisting into the Regular Army. On 27 September 2001, the applicant enlisted into the Regular Army for 3 years. Orders transferred the applicant to Fort Stewart, and he arrived on or about 1 October 2001. On or about 11 October 2001, orders assigned the applicant to the 4th Battalion, 64th Armor Regiment. c. On or about 26 October 2002, the applicant deployed with his unit to Kuwait. On or about 20 March 2003, as U.S. Forces invaded Iraq, the applicant accompanied his unit into combat in Iraq. On or about 17 June 2003, the applicant redeployed to Fort Stewart. d. On 2 December 2004, and contrary to the applicant's pleas, a general court- martial convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) The court found the applicant guilty of the following charges and specifications: * Article 81 (Conspiracy) – one specification stating, between 1 October 2003 and 1 February 2004, the applicant had conspired with two other Soldiers to steal Army MREs, valued at about $2,496.60, and then sell the MREs on eBay * Article 121 (Larceny) – three specifications respectively showing, between 1 October 2003 and 1 February 2004, the applicant stole 60 cases of MREs, valued at $4,993.20; 4 boxes of chemical lights, of a value of $29.48; and 6 magazines, worth $60 * Article 108 (Disposing of Government Property without Authority) – one specification indicating, at some point between 1 October 2003 and 1 February 2004, the applicant had, without authority, disposed of 81 cases of MREs that were valued at $6,708.50 (2) The court sentenced the applicant to a bad conduct discharge, 60-days' confinement, a fine of $6,000, and reduction in rank to private (PV1)/E-1. A DA Form 4187 (Personnel Action), dated 29 December 2004, reported the applicant's duty status had changed, effective 2 December 2004, from "Present for Duty" to "Confined Military Authorities"; the form additionally stated the applicant's was in the "Regional Correctional Facility." e. Effective 6 January 2005, the applicant completed his sentence and his unit reported him as "Present for Duty." The applicant immediately departed on excess leave. f. On 23 August 2005, the applicant's defense counsel filed an appeal with the general court-martial convening authority, requesting the convening authority disapprove the applicant's fine and bad conduct discharge. (1) The defense counsel argued the convening authority should disapprove the fine because it had no due date. In addition, counsel noted the Defense Finance and Accounting Service (DFAS) had already withheld a portion of the fine, but by disapproving the fine, the convening authority would ensure the applicant, his wife, and their newborn child, had the money they needed to make a good home for the baby. (2) The defense counsel's reasoning for disapproving the bad conduct discharge was as follows: * the court-martial panel had wanted to give the applicant a non-punitive discharge (i.e. general or under other than honorable conditions discharge) * the trial counsel had disregarded the rules of evidence by "blurting out inadmissible and highly prejudicial allegations of uncharged misconduct"; and * the convening authority should take into account the applicant's OIF service (3) Counsel asserted the applicant deserved a second chance for a meaningful future; the stigma of a Federal conviction alone would limit his educational, social, and employment opportunities and make it very hard for the applicant to support his family. g. On 2 September 2005, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). In his request, he stated no one had subjected him to coercion, and counsel had advised him of the implications of his request. The applicant further acknowledged he was guilty of one or more of the charges against him; he elected not to submit statements in his own behalf. h. On 7 September 2005, the trial counsel in the applicant's case prepared a memorandum, addressed to the general court-martial convening authority. The trial counsel reported the applicant's chain of command had all recommended approval of the applicant's separation request, with each indicating the convening authority should give the applicant an under other than honorable conditions character of service. i. On 8 September 2005, the general court-martial convening authority issued General Court-Martial Order Number 29, which listed the charges against the applicant, and showed the results of the trial and the court's sentence. The general court-martial convening authority disapproved the findings of guilty and the sentence, and stated he had approved the applicant separation request that day; based on that approval, the convening authority dismissed the charges and specifications and restored all rights, privileges, and property to the applicant. j. On 19 October 2005, orders discharged the applicant under other than honorable conditions. His DD Form 214 shows he completed 3 years, 11 months, and 19 days of his 3-year enlistment contract, with the remarks section reflecting that, for the convenience of the government, the Army had retained the applicant on active duty an additional 353 days beyond his expiration term of service. The report additionally reflected the following: * Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) – "PV1" "E01" * Item 12f (Foreign Service) – "SEE BLOCK #18" * Item 12h (Effective Date of Pay Grade) – "2004/12/16" * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal, Army Service Ribbon, Global War on Terrorism Expeditionary Medal with Arrowhead * Item 18 (Remarks) – "EXCESS LEAVE...287 DAYS: 2005/01/06 – 2005/10/19" "SERVICE IN IRAQ: (EXACT DATES UNKNOWN)" * Item 25 (Separation Authority) – chapter 10, AR 635-200 * Item 26 (SPD) – "KFS" * Item 28 (Narrative Reason for Separation) – "IN LIEU OF TRIAL BY COURT- MARTIAL." k. On 23 March 2021, an official from DFAS verified the applicant's pay records showed the applicant deployed to Kuwait/Iraq from 20021026 to 20030617 (equates to 7 months and 23 days). DFAS is viewed as an authoritative source when determining foreign-service credit, based on the receipt of Hostile Fire/Imminent Danger Pay and Combat Zone Tax Exclusion. 5. Counsel argues, as a matter of equity, the Board should upgrade the applicant's character of service because of extenuating factors. Specifically, the applicant had incurred post-traumatic stress disorder (PTSD) during his deployment to Iraq," and the PTSD significantly contributed to the applicant's misconduct, in that it negatively affected his thought processes and decision-making abilities. The VA has since awarded the applicant a 70 percent disability rating for his PTSD. The applicant wishes to remove the stigma he has felt since his discharge, and to have access to such VA benefits as a military funeral. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial, and Soldiers could submit such requests at any point from the preferral of charges to when the convening authority was taking final action. The Manual for Courts-Martial (MCM), then in effect, showed punitive discharges among the available maximum punishments for violations of Articles 121 and 108, when the military property in question was valued at more than $500. In addition, the MCM further stated persons convicted of conspiracy (Article 81) became subject to the same maximum punishment authorized for "the offense which (was) the object of the conspiracy." b. Paragraph 5-3 (Secretarial Plenary Authority), stated the separation of enlisted personnel was the sole prerogative of the Secretary of the Army, or his/her designee (i.e. the ABCMR). (1) The discharge or release of any enlisted member of the Army for the convenience of the Government was at the Secretary’s discretion, done on a case-by- case basis, and with the type of discharge as determined by him/her. In addition, the separation could be either voluntary or involuntary in nature. (2) In cases where the Board changes an applicant's separation authority citation to AR 635-200, paragraph 5-3, it also becomes necessary to amend the narrative reason for separation and its associated separation program designator (SPD). According to AR 635-5-1 (SPD), then in effect, Soldiers involuntarily separated per paragraph 5-3, AR 635-200 received the following narrative reason for separation: "Secretarial Authority"; the SPD was "JFF." c. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. Regarding the applicant's uncharacterized character of service, issued at the conclusion of his IADT (11 April 2000), and while he was a member of the NYARNG: a. The available evidence shows the applicant was called to IADT, successfully completed IET, and was awarded an MOS. Following IADT/IET, the applicant returned to his ARNG unit. b. At the time the applicant completed his IET, the governing regulation stated separating Soldiers in an entry-level status were required to receive an uncharacterized character of service. However, the current separation regulation states Reserve Component (RC) Soldiers will receive an honorable character of service (unless directed otherwise by the separation approval authority) after they have successfully completed IET, been awarded an MOS, and are released to their respective RC unit for duty. c. The available evidence reflects the applicant fulfilled the requirement of the current regulation, and, were he undergoing IET today, he would be issued an honorable character of service. Based on current regulatory guidance, it would be appropriate to revise his character of service to honorable, in the interest of equity. 7. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant’s assertion of taking MREs from a dumpster does not align with the charges which reflect a substantial amount of MREs were obtained. Additionally, the assertion the applicant was unaware taking MREs was a crime does not align with the charges which reflect the MREs were obtained for the purpose of selling them on eBay and disposed of likely in an attempt to avoid detection. Moreover, the applicant took additional property which was not addressed. In terms of a psychiatric condition contributing to misconduct, in-service records include an encounter for a Sanity Evaluation which, after a thorough evaluation, diagnosed Adjustment Disorder. This diagnosis would have led to the determination the applicant did not have a mitigating condition and could be held responsible for his actions. While VA records available to this advisor were void of a service connection or any contact, the applicant supplied a VA Rating Decision letter reflecting a service connection for PTSD. However, the onset is only backdated to April 2019; 14 years after rather than at the time of his service and misconduct. Furthermore, the exam is unavailable; trauma and related information is absent. Irrespective, and in consideration of liberal guidance, PTSD does not mitigate the basis for separation. Specifically, the acts reflect conscious and purposeful planning in coordination with other Soldiers to include identifying the steps needed to complete the larceny, arranging eBay accounts and managing purchases and delivery, and disposing of the government property possibly in an effort to avoid detection. Accordingly, an upgrade and requested changes are not supported from a behavioral health perspective. b. The applicant was discharged on 19 October 2005 under Chapter 10, In Lieu of Trial by Court Martial, with an Other than Honorable characterization. The applicant was found guilty of Conspiracy when he conspired with two other Soldiers to steal Army MREs, valued at $2,496.6, and then sell the MREs on eBay; Larceny, three specifications of stealing 60 cases of MREs, valued at $4,993.2, 4 boxes of chemical lights and 6 magazines; Disposing of Government Property without Authority, disposed of 81 cases of MREs valued at $6,708.5. The applicant is requesting an Honorable characterization with amendment to his Separation Authority, Separation Code, and Narrative Reason for Discharge related to Secretarial Authority. The applicant, through counsel, contends the applicant should be upgraded due to PTSD. Additionally, counsel asserts the applicant was obtaining MREs from a dumpster and was unaware he was committing a crime. c. Due to the period of service, electronic active duty medical records are minimal. The applicant received treatment for STDs from July to September 2004. In November 2004, the applicant had a Sanity Evaluation, 706, with an Adjustment Disorder diagnosis. Although the actual evaluation is unavailable, 706 evaluations are extremely comprehensive with objective psychological assessment. Given the Adjustment Disorder diagnosis, the provider determined the applicant did not have a disabling psychiatry condition at the time of the misconduct and could be held responsible. d. VA medical records available to this advisor are void of contact or a service connection. The applicant submitted what appears to be an October 2019 VA Rating Decision letter service connecting the applicant for PTSD at 70%. However, the service connection is only backdated to April 2019, 14 years after discharge rather than at the time of the misconduct. Additionally, the Compensation and Pension (C&P) exam is unavailable for review; trauma and details unknown. So although the applicant deployed, this does not equate to PTSD; Soldiers have been service connected related to the separation process or confinement being experienced as traumatic. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. Board members noted that the applicant was convicted by a general court-martial of Conspiracy to Commit Larceny; Larceny of Government Property, Wrongful Disposition of Government Property. The court convicted him of all charges and sentenced him to confinement, fine, reduction, and a bad conduct discharge. Through counsel, this finding was later changed to a chapter 10, discharge in lieu of trial by court-martial. The request for voluntary discharge was approved and the applicant was separated with an UOTHC. There is no error or injustice here. 2. Board members agreed with the medical reviewer's assessment that the applicant's claimed PTSD does not mitigate the basis for separation. Specifically, the acts reflect conscious and purposeful planning in coordination with other Soldiers to include identifying the steps needed to complete the larceny, arranging eBay accounts and managing purchases and delivery, and disposing of the government property possibly in an effort to avoid detection. Accordingly, an upgrade and requested changes are not supported from a behavioral health perspective. Board members voted not to change the narrative reason for separation because the applicant was not directed for separation under Secretarial Authority. He requested a voluntary discharge instead of facing the more serious court-martial conviction. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all of the separating Soldier's awards for all periods of service. a. The applicant's ERB shows he was assigned to the 4th Battalion, 64th Armor Regiment, during the period 19 March until 1 May 2003. DFAS confirms the applicant deployed to Kuwait/Iraq between 26 October 2002 and 17June 2003. b. Department of the Army General Order 22, dated 2010, awarded the 4th Battalion, 64th Armor Regiment the Presidential Unit Citation for extraordinary heroism against an armed enemy during the period 19 March until 1 May 2003. 2. AR 635-8 (Separation Processing and Documents), currently in effect, states: a. Item 12f (Foreign Service) shows the total amount of service performed outside the continental United States during the period of the report. b. Soldiers who deployed with their unit during their continuous period of active service will show the following statement in item 18: "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)." c. The DFAS email confirms the applicant deployed during his term of active duty service: Kuwait/Iraq from 20021026 to 20030617 (7 months and 23 days). 3. Based on the foregoing, amend the applicant's DD Form 214, ending 19 October 2005, as follows: * Add the Presidential Unit Citation * Delete current entry in Item 12f (Foreign Service) and replace with: "0000/07/23" * Delete "SERVICE IN IRAQ: (EXACT DATES UNKNOWN)" and replace with: "SERVICE IN KUWAIT/IRAQ FROM 20021026 to 20030617" REFERENCES: 1. Title 10, USC, 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. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities issued the general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-3 (Secretarial Plenary Authority), stated the separation of enlisted personnel was the sole prerogative of the Secretary of the Army, or his/her designee (i.e. the ABCMR). The discharge or release of any enlisted member of the Army for the convenience of the Government was at the Secretary’s discretion, done on a case-by- case basis, and with the type of discharge as determined by him/her. In addition, the separation could be either voluntary or involuntary in nature. d. Chapter 10 permitted Soldiers to request discharge in lieu of trial by court-martial when they had committed an offense or offenses that, under the UCMJ and the MCM, included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred and up to the point that the convening authority approved the sentence. Once the separation request was approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, when warranted. 3. AR 635-5-1 (SPD), then in effect, stated Soldiers separated per paragraph 5-3, AR 635-200 received the following narrative reason for separation: "Secretarial Authority"; the SPD was "JFF." 4. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Chapter 7 (Reductions in Grade) outlined the reasons for reduction in rank; Soldiers were required to be reduced to the lowest enlisted grade when they were being separated as a result of an approved under other than honorable conditions discharge. 5. The MCM, in effect at the time, stated, in Appendix 12 (Maximum Punishment Chart), that punitive discharges were among the maximum punishments allowed for UCMJ violations of the following Articles: * Article 81 (Conspiracy; subject to maximum punishment authorized for offense that was the object of the conspiracy, i.e. Larceny); * Article 108 (Disposal of Military Property valued at more than $500); and * Article 121 (Larceny of Military Property valued at more than $500) 6. On 25 August 2017, the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance to DRBs and BCM/NRs pertaining to requests by Veterans for the 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 were told to give liberal consideration to Veterans petitioning for discharge relief when the application was based, in whole or in part, on the aforementioned conditions or experiences. The guidance further described acceptable evidence sources and criteria, and required Boards to evaluate the conditions or experiences presented in evidence as potential mitigation for the misconduct that led to the discharge. 7. 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. 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// ABCMR Record of Proceedings (cont) AR20200009491 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1