IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20200000051 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded. 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 17 October 2019 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 states he was young and dumb. His platoon sergeant had repeatedly verbally abused him and physically spit in his face. When he just couldn't take it any longer he ran (went absent without leave (AWOL)). He now deeply regrets this action. 3. The applicant enlisted in the Regular Army on 29 April 1980. 4. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * on 27 May 1982, for AWOL from on or about 23 May 1982 to on or about 25 May 1982; his punishment included a suspended reduction in grade that was vacated on 27 July 1982 * on 9 June 1982, for missing movement on or about 7 June 1982 and breaking restriction on or about 7 June 1982 5. DA Forms 4187 (Personnel Actions) show the applicant: * was reported as AWOL from on or about 27 July to 28 July 1982 * was placed in confinement on 6 August 1982 pending court-martial * was reported as AWOL and dropped from rolls on 7 August 1982 * returned to military control on 28 December 1982, by apprehension, and placed in military confinement 6. A DA Form 4430-R (Report of Result of Trial), shows a summary court-martial, adjudged on 6 August 1982, found the applicant guilty of two specifications of AWOL. His sentence included reduction to the grade of private/E-1, forfeiture of $366.00 pay, and confinement at hard labor for 30 days. 7. A second DA Form 4430-R shows the applicant was found guilty, on 17 January 1983 by a BCD special court-martial, of escaping confinement on 7 August 1982, and of desertion from 7 August 1982 through 28 December 1982. His sentence included confinement at hard labor for 3 months, forfeiture of $382.00 for three months, and to be discharged from the service with a BCD. 8. A Disposition Form, dated 9 March 1983, indicates the convening authority approved the sentence to punitive discharge on 15 February 1983. The remainder of the applicant's period of confinement was remitted. 9. The applicant was placed on excess leave pending completion of his appellate review, effective 10 March 1983. 10. The available record is void of the applicant’s appellate review or discharge orders. 11. The applicant was discharged on 6 October 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service characterized as bad conduct. 12. The Board should consider the applicant's petition, service record, and statement in light of the published guidance on equity, injustice, or clemency. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 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. It provides: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 3 provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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 Military Discharge Review Boards and 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) AR20200000051 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000051 4 ABCMR Record of Proceedings (cont) AR20200000051 3