IN THE CASE OF: BOARD DATE: 18 February 2021 DOCKET NUMBER: AR20200003372 APPLICANT REQUESTS: In effect, his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show an upgrade of his bad conduct discharge (BCD) in the Department of Veterans Affairs (VA) database. 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 6 February 2020 * DD Form 214, for the period ending 17 July 1987 * VA information sheet 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 granted an upgrade from a BCD to an other than honorable but as of this date the VA records have not been updated to reflect the upgrade. 3. The applicant enlisted in the Regular Army on 7 August 1984. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * 19 February 1986, for wrongful possession of some amount of marihuana on or about 4 February 1986 * 27 June 1986, for being absent from his place of duty on or about 21 May 1986 5. General Court-Martial Order Number 73, issued by 4th Infantry Division, Fort Carson, CO, dated 29 July 1986, shows: a. the applicant was convicted of: * assault with a dangerous weapon upon another Soldier, by pointing at him with a handgun, on or about 18 October 1985 * assault with a dangerous weapon upon another Soldier, by pointing at him with a handgun, on or about 18 October 1985 * wrongfully communicate a threat to kill another Soldier, while pointing at him with a handgun, on or about 18 October 1985 * wrongfully communicate a threat to shoot another Soldier, while pointing at him with a handgun, on or about 18 October 1985 b. The sentence was adjudged on 24 June 1986. The court sentenced him to be reduced to the grade of E-1; to be confined for one year; to forfeit all pay and allowances; and, to be discharged from the service with a BCD. 6. General Court-Martial Order Number 92 issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized) Fort Carson, CO, dated 30 September 1986 states: Effective 29 July 1986, execution of the approved sentence to confinement for one year (confinement-in excess of 3 months suspended for 3 months, with provisions for remission), total forfeitures for one year (total forfeitures in excess of 3 months suspended for 3 months, with provisions for remission), adjudged 24 June 1986, are vacated pursuant to Article 72, UCMJ. The vacated portions of the sentence will be executed (Appellate review pending). 7. The applicant was placed on excess leave effective 24 April 1987. 8. General Court-Martial Order Number 416, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Kansas on 7 July 1987, noted that the findings and sentence in the applicant's case had been affirmed and ordered the BCD duly executed. 9. The applicant was discharged on 17 July 1987. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, due to a court-martial conviction, and his service characterization was bad conduct. His DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he had 2 years, 1 month, and 20 days of active duty service with 2 months of inactive service * he was in an excess leave status for 85 days 10. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 11. The VA document provided by the applicant shows his character of service as "other than honorable". 12. The applicant has not provided and the available record does not contain any evidence the applicant received an upgrade of his BCD. 13. The VA utilizes the term "other than honorable" for all discharges other than an honorable or general discharge. It is not the same characterization of service as utilized by the military for an administrative discharge under other than honorable conditions (UOTHC). 14. 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. 15. The Board should consider the applicant's statement and letters of support in accordance with the published equity, injustice, or clemency determination guidance. 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 :XX :XX :XX 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 Army Board for Correction of Military Records (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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial d. A Soldier will be given a BCD only pursuant to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 4. 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. 5. 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.) AR20200003372 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont.) AR20200003372 5 ABCMR Record of Proceedings (cont.) AR20200003372 4