IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200001123 APPLICANT REQUESTS: The applicant requests reconsideration of his request to upgrade his bad conduct discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record). 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 AR2005000 on March. 2. The applicant states as a young man in the military trying to find himself, he always dreamed of being in the Army. He lost his grandmother who raised him so he was depressed and acted out. His life was upside down and his behavior went out of control. His emotions left him feeling down and depressed. He is older, more mature, and responsible. He is asking for another chance. He is asking for an upgrade so he can be more productive in society and give back to the community, better himself, and serve others in volunteer work and other organizations. 3. On 28 February 1979, he enlisted in the Regular Army for a term of 3 years, at the age of 18 years old. 4. In 1979, the applicant accepted nonjudicial punishment (NJP) for, on two occasions, failing to go at the time prescribed to his appointed place of duty. 5. On 31 March 1980, he went absent without leave (AWOL) and remained absent until 22 May 1980 (53 days). 6. He accepted NJP on: * 6 June 1980 for being AWOL from 31 March 1980 and remained absent until 22 May 1980; punishment: reduction to Private E-1 (suspended for six months), forfeiture of $220.00 pay, and 45 days restriction ( * 22 September 1980, for failing to go at the time prescribed to his appointed place of duty; punishment: forfeiture of $105.00, 14 days extra duty, and 14 days restriction * 7 October 1980, for, on three occasions, failing to go at the time prescribed to his appointed place of duty; punishment: reduction to Private E-2, forfeiture of $100.00 pay, 7 days extra duty, and 7 days restriction * 9 October 1980, for wrongfully possessing some amount of marijuana; punishment: forfeiture of $100.00 pay, 14 days extra duty, and 14 days restriction 7. On 8 November 1980, the battalion commander reassigned the applicant by intra- battalion reassignment for rehabilitation purposes. 8. His record further shows a history of being absent: * AWOL from 5 January 1981, remaining absent until 6 January 1981, surrendering to his unit * confined by civil authorities from 16 February 1981 to 20 February 1981, confined in Alabama for larceny * AWOL from 20 February 1981, remaining absent until 23 February 1981, surrendering to his unit * AWOL from 2 March 1981, remaining absent until 18 May 1981, surrendering to his unit 9. On 20 May 1981, court-martial charges were preferred against the applicant. On June the applicant went AWOL and remained absent until he surrendered to the unit on 8 June 1981. a. On 9 June 1981, he was convicted by special court-martial, pursuant to his pleas, for: * Article 86 (absence without leave), one specification of being absent from his unit from 2 March 1981, remaining absent until 17 May 1981 * Article 91, (insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), one specification of being disrespectful in language toward SGT V_ T_, by saying to him, ?F_ you, I?m not doing nothing? b. He was sentenced to be discharged from the service with a bad conduct discharge, forfeiture of $100.00 for three months, and to be confined at hard labor for three months. c. The Staff Judge Advocate reviewed the case and on 24 July 1981, the convening authority approved the action. The record of trial (available for review) was forwarded for appellate review. On 10 November 1981, after being finally affirmed, the sentence was ordered executed. 10. On 24 November 1981, the applicant was discharged under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11. His service was characterized as a bad conduct discharge as a result of a court-martial. He completed 2 years, 1 month, and 27 days of his 3-year contractual obligation, with 212 days lost (AWOL – 136 days; confinement – 76 days). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * He was awarded or authorized: * Parachutist Badge * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade First Class Qualification Badge * Army Service Ribbon 11. On 23 March 2006, the ABCMR denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his record. On his DD Form 149, he stated his discharge was unjust because of harsh judgement. The E-5 told him to fight a fire and he would not tolerate any defiance but he was not a fire fighter. The Sergeant behaved unreasonably. 12. AR 635-200, Chapter 11 (Dishonorable and Bad Conduct Discharge), states a member will 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. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 14. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record 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 :X :X :X 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. Chapter 11, paragraph 11-2 (Bad Conduct Discharge), states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and a dishonorable discharge only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 2. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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. 3. 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. 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, 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. 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) AR20200001123 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001123 6 ABCMR Record of Proceedings (cont) AR20200001123 5