ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160014446 APPLICANT REQUESTS: Upgrade of his bad conduct discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * one-page Statement provided by an outpatient therapist, Newaygo County Mental Health Center, White Cloud, Michigan, dated 9 August 2016 * approximately 100 pages of the applicant's records provided by the Newaygo County Mental Health Center FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 is requesting the upgrade so he can receive Department of Veterans Affairs' assistance with his medical conditions. He feels that this is justified due to service connection for his mental health issues. 3. The applicant enlisted in the Regular Army on 29 September 1970. 4. The applicant's records show he consulted with legal counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations- Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court- martial because court-martial charges were preferred against him for offenses that could result in a bad conduct or dishonorable discharge. He was accused of five specifications of larceny (stealing the property of other Soldiers). 5. His request for discharge in lieu of trial by court-martial was disapproved due to the magnitude of the charges preferred against him. 6. Special court-martial orders issued by Headquarters, U.S. Army, Alaska, on 3 December 1971, show the applicant was found guilty by a special court-martial of five specifications of stealing the property of other Soldiers. He was sentenced to a bad conduct discharge. 7. The U.S. Army Court of Military Review affirmed the findings and the sentence on 2 June 1972. 8. On 8 January 1973, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed. 9. Accordingly, he was discharged on 30 January 1973 as a result of a court-martial. His DD Form 214 (Armed Forces of the United Sates Report of Transfer or Discharge) shows his service was characterized as under conditions other than honorable and that he was issued a DD Form 259A (Bad Conduct Discharge Certificate). 10. On 18 June 2018, the Army Review Boards Agency (ARBA) psychologist/medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. Based on the information available for review, the applicant did not have a mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. There is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 19 June 2018 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient to grant relief. The applicant’s contentions, medical concerns, the medical advisory opinion and current policy regarding consideration of requests for discharge upgrade were carefully considered. The Board agreed the discharge characterization was warranted as a result of the misconduct. 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. 4/23/2019 X CHAIRPERSON 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. Chapter 11 of the regulation in effect at the time states an enlisted person 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. 3. Army Regulation 635-200, currently in effect, provides in paragraph 3-7b 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. 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. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the Service Discharge Review Boards (DRBs) and Service 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. //NOTHING FOLLOWS//