ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  6 May 2019

	DOCKET NUMBER:  AR20160015023


APPLICANT REQUESTS:  The applicant requests his dishonorable discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record)
* 2 character reference letters

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 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:

	a.  He is requesting his discharge be upgraded to an honorable based on the honorable character of his actions since his discharge.  He feels that at the time he was young and ignorant.  He was simply in the wrong location at the wrong time and was characterized by his surroundings rather than his actions.  

	b.  He has been an active member in his church and community for more than 40 years.  He is responsible, dependable, and maintains a high level of integrity.  He is a proud father of an amazing 31 year old daughter and he plans to continue being an honorable man in her life.

3.  On 30 June 1977, at the age of 18 years old, the applicant enlisted in the Regular Army.  On 3 June 1980, he was honorably discharged for immediate reenlistment.  On 4 June 1980, he reenlisted for a period of 3 years.

4.  A review of his record shows he accepted nonjudicial punishment NJP on:

* 12 January 1981 for violating a lawful regulation for purchasing stereo equipment for a German National.
* 11 February 1982 for being absent without leave (AWOL) from 7 February 1982 to 9 February 1982, AWOL (1 day) .
* 29 May 1982, for disobeying his superior commissioned officer and for failing to go at the time prescribed to his appointed place of duty 

5.  On 17 May 1982, a bar to reenlistment was initiated against the applicant and subsequently approved by the appropriate authority.  His bar to reenlistment certificate includes a statement from the applicant.  The form states the applicant was pending NJP (Field Grade Article 15) and he received NJP on:

* 22 January 1981 for black marketing
* 27 August 1981 for AWOL (not available for review)
* 11 February 1982 for AWOL

6.  On 30 November 1982, the applicant was convicted by a general court-martial for one specification of indecent assault of a female.  He was sentenced to confinement with hard labor for two years and six months, forfeiture of all pay and allowances, and a dishonorable discharge and the sentence was approved by the convening authority on 25 February 1983.

7.  On 29 July 1983, a portion of the applicant’s forfeiture was suspended, effective 7 July 1983 on the condition that the applicant continued satisfactory performance of duty, until such time as the sentence was ordered executed.

8.  On 24 January 1984, U.S. Army Court of Military Review (USACMR), affirmed the findings of guilty and only so much of the sentence as provided for the dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years.  

9.  On 16 February 1984, the applicant was notified of the USACMR’s decision and the applicant requested a review by the U.S. Court of Military Appeals (USCMA).  On 28 April 1986, the findings and the affirmed sentence was ordered executed.

10.  On 13 June 1986, the applicant was discharged accordingly.  His service was characterized as a dishonorable discharge as a result of a court-martial.  He completed 7 years, 4 months, and 5 days of net active service this period, with 3 years, 7 months, and 19 days of Foreign Service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) as amended by DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) shows:

* He was awarded or authorized:  
   
* Army Good Conduct Medal
* M-16 Rifle Expert Marksmanship Qualification Badge
   
* Dates of Time Lost During This Period as "830604-840423," which was later amended by DD Form 215 to read:  "820207-820208 820712-820728 821014-840423"

11.  The applicant provides 2 letters of character references:

	a.  Letter from S_ G_ states she has known the applicant for over 40 years.  They attended high school together.  She has known him for over the last 12 years as his banker.  He is a strong independent man that has demonstrated a desire to be a good person by being actively involved in his church and sharing his singing voice with individuals attending church services.  He has shown her over the last twelve years his determination to improve his finances and make his life better.

	b.  Letter from R_ L_, states:

		(1)  He has known the applicant for more than 45 years.  He and the applicant go to the same church where he serves as the applicant’s minister, so he feels qualified to speak on his behalf in terms of his character.  Throughout the time that he has the applicant, he has formed a very positive opinion of him.  

		(2)  The applicant has displayed great enthusiasm and initiative.  He has excellent communication skills and has a very friendly and outgoing personality.  He is professional, kind and generous, and a dynamic worker in the church, who will go the extra mile on all projects.  

		(3)  Not only do he like the applicant, he also respects him.  He felt honored to be asked to provide this character reference and hope that the information he provided helps the Board understand what an outstanding individual the applicant really is.

12.  The applicant states he is requesting his discharge be upgraded based on his actions since his discharge and that at the time he was young and ignorant.  He contends he was in the wrong location at the wrong time and was characterized by his surroundings rather than his actions.  His record shows that he enlisted at the age of 18 years old, accepted NJP on four occasions, and was convicted by general court-martial for an indecent assault.  

13.  AR 635-200 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 discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  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

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Board has 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.

15.  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 DOD guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had no wartime service and no evidence of mitigating circumstances for the serious misconduct.  The Board agreed that the applicant’s discharge characterization is appropriate.



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:

Other than the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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 otherwise 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):

1.  A review of the applicant’s record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty) as amended by DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) is missing important entries that may affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): 

* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770620 UNTIL 800603"

2.  The record also shows the DD Form 214, item 28 (Narrative Reason for Separation), was corrected by DD Form 215; however, the form should have corrected item 29 (Dates of Time Lost During This Period) vice item 28.  As a result, amend the DD Form 214, item 28, by deleting:  "820207-820208 820712-820728 821014-840423//NOTHING FOLLOWS" and adding to item 29:  "820207-820208 820712-820728 821014-840423."

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 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 appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. 

	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.  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.

3.  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.

4.  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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015023


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