IN THE CASE OF: BOARD DATE: 18 June 2021 DOCKET NUMBER: AR20200002195 APPLICANT REQUESTS: * In effect, the upgrade of his bad conduct discharge * Retroactive payment for accrued leave and back pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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. The applicant states, in effect, he joined the Army to serve and honor his country; he emphasizes he was willing to die for his country, but now he is just one of a number of homeless Veterans who are living on the streets. During the Gulf War period, he incurred an injury, and, during his hospitalization, his Army chain of command failed to provide him with counsel; the applicant contends, at the time, he was not of sound mind because he was on medication. 3. The applicant's service records show: a. On 20 July 1988, the applicant enlisted into the Regular Army for 4 years. Following the completion of initial entry training, and the award of military occupational specialty 16T (Patriot Missile Crewmember), orders assigned the applicant to Fort Bliss, TX, and he arrived at his unit on 20 January 1989. Effective 1 November 1989, the applicant's Fort Bliss leadership promoted him to specialist (SPC)/E-4. b. According to the Gulf War Operations Desert Shield/Desert Storm Database Roster, compiled by the Defense Manpower Data Center (DMDC), the applicant deployed as part of the 1st Armored Division, on 1 October 1990, in support of Operations Desert Shield/Desert Storm; (the applicant's service record is void of documentation confirming this deployment). At some point prior to 22 October 1990, the applicant redeployed to Fort Bliss. On 22 October 1990, the applicant's leadership placed him in pre-trial confinement. c. On 27 February 1991, a general court-martial convicted the applicant of a Uniform Code of Military Justice (UCMJ) violation. (1) Of the six charges preferred against the applicant: * the military judge dismissed two charges (Article 86 (Failure to Report to Duty on Time) and Article 107 (False Official Statement)) * the court found the applicant not guilty of another three charges (Article 108 (Willfully Destroying Military Property valued at more than $100), two specifications; Article 126 (Arson of a building having a value of more than $100), two specifications; and Article 130 (Housebreaking)) * the court determined the applicant was guilty of one charge: Article 121 (Larceny), in that, between 24 July and 4 August 1990, the applicant had stolen private property valued at more than $100 (the applicant's service record includes no details as to what property the applicant stole) (2) The court sentenced the applicant to 22-months' confinement, total forfeiture of all pay and allowances, reduction to private/E-1, and a bad conduct discharge. (3) On 8 May 1991, the general court-martial convening authority approved the sentence and, except for the bad conduct discharge, the convening authority ordered sentence's execution. The convening authority additionally credited the applicant with 129 days towards his term of confinement. (The applicant had been in pre-trial confinement from 22 October 1990 until 27 February 1991, which equates to 129 days). d. On 13 March 1992, the confinement authority released the applicant after 16 months and 20 days in confinement. Following the applicant's release, the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK placed the applicant on excess leave. e. On 29 December 1993, a general court-martial order announced the completion of the applicant's appellate review process and directed the applicant's bad conduct discharge; on 20 January 1994, separation orders discharged the applicant accordingly. f. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 1 month, and 10 days of his 4-year enlistment contract, with lost time from 19901022 through 19920312. The DD Form 214 also lists the awards of the Army Service Ribbon, National Defense Service Ribbon, and two marksmanship qualification badges. g. On 15 September 2020, the Army Review Boards Agency requested the applicant to provide supporting medical evidence to show what injuries he incurred during the Gulf War era. As of May 2021, the applicant has not responded. 4. The applicant maintains he joined the Army to serve his country; now he is just one of a number of homeless Veterans. Prior to his court-martial conviction, his Army chain of command failed to provide him with counsel; the applicant contends he was not of sound mind at the time because he was on medication. a. 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 ABCMR is not empowered to set aside a conviction. Rather, the law only authorizes the Board 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. b. 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. 5. The applicant requests retroactive payment of accrued leave, as well as pay and allowances. a. The Defense Finance and Accounting Service (DFAS) is responsible for addressing claims involving unpaid pay and allowances and has a process for filing a payment claim. More information is available at the following web address: https://www.dfas.mil/debtandclaims/submitclaim/ b. The applicant seeks payment for accrued leave as well as back pay, which he asserts, in effect, the Army should have paid him prior to his discharge in 1994. Title 31 (Money and Finance), USC, Section 3702 (Authority to Settle Claims (also known as the Barring Act)) requires claimants to submit their requests for unpaid pay and allowances within 6 years of the date from which those monies were originally due. After 6 years, the law prohibits DFAS from disbursing any funds, no matter how legitimate the claim; as such, DFAS returns any requests it receives beyond the 6-year statutory time limit without taking action. 6. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 20 January 1994 bad conduct discharge. He claims to have been injured during the Gulf War period, not given adequate counsel/advice while in the hospital, and was not in “sound mind” while on medication. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 20 June 1988 and received a bad conduct discharge on 20 January 1994 under the provisions provided in Section IV of chapter 3 of AR 635-200, Personnel Management – Enlisted Personnel (17 September 1990): “Dishonorable and Bad Conduct Discharge.” His separation code of JJD denotes this separation was the result of court martial. The DD 214 does not lists any deployments. c. Because of the period of Service under consideration, there are no clinical encounters in AHLTA or documents in iPERMS. There was no medical documentation submitted with the application and no notable encounters in JLV. d. His General Court-Martial Order dated 8 May 1991 shows he was found guilty of “Larceny of private property, of a value in excess of $100.00.” His sentence, adjudged on 27 February 1991, included reduction in grade to E-1 and confinement for 22 months. e. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violation; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. It should be noted that larceny is not typically mitigated under liberal consideration policies. f. In accordance with the Liberal Consideration guidance, it is the opinion of the Agency medical advisor the applicant did not have mental health or other medical condition which would mitigate his UCMJ conviction. A discharge upgrade based on a medical condition is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that some relief was 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 a medical review, and whether to apply clemency. The applicant did not provide letters of support nor evidence of any post-service achievements. Based upon a preponderance of evidence, the Board agreed that the character of service the applicant received upon separation should be corrected as a matter of clemency; however, at the Under Other Than Honorable Conditions level. The Board also agreed there is insufficient evidence that shows the applicant is entitled to any form of back pay for leave or other entitlements. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 20 January 1994 showing the character of service as Under Other Than Honorable Conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to providing back pay. 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 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. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of a Secretary's Department may only extend to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier received a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate authority must have completed the review process, and the affirmed sentence ordered duly executed. 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. 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. 4. Title 31 (Money and Finance), USC, Section 3702 (Authority to Settle Claims (also known as the Barring Act)) requires claimants to submit their requests for retroactive payment within 6 years of the date from which the pay was originally due. After 6 years, the law prohibits DFAS from disbursing any funds, no matter how legitimate the claim; as such, any requests received beyond the 6-year statutory time limit are returned without taking action. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002195 6 ABCMR Record of Proceedings AR20200002195 1