IN THE CASE OF: BOARD DATE: 11 June 2020 DOCKET NUMBER: AR20200000745 APPLICANT REQUESTS: in effect, an upgrade of his bad conduct discharge (BCD). 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 30 October 2019, with self-authored statement 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, in effect, that he regrets not finishing his tour of duty with honor. He served for 30 months proudly with distinction. Unfortunately, his last six months were fraught with a host of personal problems, including numerous deaths of family and friends; his fiancé's infidelity; his parents on the verge of divorce after 25 years of marriage; and etc. He was overwhelmed. His immaturity and refusal to seek help only made the situation worse. Hopefully his stellar service record up to that point; youthful immaturity; and mitigating circumstances will help his case. 3. The applicant enlisted in the Regular Army on 1 February 1977. 4. The applicant accepted non-judicial punishment (NJP) on 1 February 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for two specifications of failing to go to his appointed place of duty, at the prescribed time, on or about 22 and [unreadable date] January 1979; and on or about 19 January 1979, at Fort Eustis, VA. His sentence included a suspended reduction to the rank/grade of Private First Class/E-3. 5. Special Court-Martial Number 18, issued by Headquarters, 7th Transportation Group (Terminal), Fort Eustis, VA on 17 October 1979, shows: a. The applicant was tried before a special court-martial on or about 31 August 1979, at Fort Eustis, VA, and was convicted of the following specifications: * behaving disrespectfully toward his superior commissioned officer, on or about 23 June 1979 * willfully and wrongfully damaging another Soldiers property [automobile], on or about 29 July 1979 b. His sentence included his reduction in rank/grade to private/E-1. c. His sentence was approved on 17 October 1979. 6. Special Court-Martial Number 5, issued by the U.S. Army Transportation Center and Fort Eustis, Fort Eustis, VA on 14 April 1980, shows: a. The applicant was tried before a special court-martial on or about 27 February 1980, at Fort Eustis, VA, and was convicted of the following: * two specifications of assault, on or about 29 December 1979 * wrongfully communicating a threat, on or about 29 December 1979 * failing to obey a lawful order, on or about 29 December 1979 b. His sentence included his confinement at hard labor for two months and his separation from service with a BCD. c. His sentence was approved on 14 April 1980 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. He was to be confined at U. S. Disciplinary Barracks, Fort Leavenworth, Kansas. 7. The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's special court-martial on 10 October 1980. 8. Special Court-Martial Order Number 26, issued by Headquarters, 18th Airborne Corps and Fort Bragg, Fort Bragg, NC on 23 February 1981, noted that the applicant's sentence had finally been affirmed and ordered the applicant's BCD duly executed. 9. The applicant was discharged on 11 March 1981. His DD Form 214 (Certificate of Release or Discharge for Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 11, as a result of court-martial, and his service was characterized as bad conduct. 10. 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. 11. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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, the frequency and nature of his misconduct, the results of two special courts martial and the reason for his separation. The Board found insufficient evidence of in- service mitigating factors to overcome his multiple incidents of misconduct 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 that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :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. 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. 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. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Chapter 11 of the version in effect at the time provided that an enlisted person would be given a BCD 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. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 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 Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018, 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 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. 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, 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. c. 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) AR20200000745 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000745 5 ABCMR Record of Proceedings (cont) AR20200000745 4