ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160016961 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. 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 26 August 2016 * DD Form 256A (Honorable Discharge Certificate), dated 21 November 1985 * Honorable Discharge Certificate, dated 8 February 1989 * Certificates of Achievement, Certificates of Course Completion, Certificates of Appreciation, Letters of Nomination for Driver of the Month, and Identification Cards * Employment Record * Letter of Character, dated 27 August 2016 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 enlisted on 2 February 1983 under a 3-year contract with no adverse reports on his record. He reenlisted in November 1985 under a 4-year contract with no adverse reports on his record. He reenlisted again in February 1989 planning to make a career of the military. He was awarded two Army Achievement Medals, two Army Good Conduct Medals, two Noncommissioned Officer Professional Development Ribbons, the Overseas Service Medal, the Expert Infantryman Badge, and many other awards and achievements not listed. Since his release from the military, he has had a productive life and good work history. He is a registered contractor, welder, truck driver, and family man. 1. 3. The applicant enlisted in the Regular Army on 16 February 1983. He reenlisted on 22 November 1985, extended his enlistment on 7 September 1988, and reenlisted again on 9 February 1989. 4. General Court-Martial Order Number 8, issued by Headquarters, U.S. Army Engineer Center and Fort Leonard Wood, MO on 21 October 1991, shows the applicant was convicted on 12 September 1991, pursuant to his plea, of three specifications of violating lawful regulations by wrongfully engaging in a nonprofessional relationship of a personal nature with a female trainee, by engaging in sexual intercourse. His sentence included his reduction to the rank/grade of private/E-1, forfeiture of $300.00 pay per month for eight months, confinement for eight months, and his separation from service with a BCD. 5. The convening authority approved only so much of the sentence that pertained to the reduction to the rank/grade of private/E1, confinement for six months, and his separation from service with a BCD. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. General Court-Martial Order Number 7, issued by Headquarters, U.S. Army Engineer Center and Fort Leonard Wood, MO on 29 April 1992, noted that the approved sentence had been finally affirmed and ordered the BCD executed. 7. The applicant was discharged on 23 June 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial conviction. He received a BCD. 8. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. One possible outcome discussed was to deny the request for relief based upon the FSM’s misconduct while serving in a position of trust. However, based upon the 8 years of service prior to the misconduct, the record of the applicant showing no other misconduct other than that which resulted in the discharge, as well as the passage of time, the Board concluded that granting clemency by upgrading the discharge characterization to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X 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 the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 2. Additionally, the Board noted that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 16 February 1983 until 8 February 1989.” 3. Finally, 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 upgrading the characterization of his discharge to Honorable. 5/1/2019 X CHAIRPERSON Signed by: 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 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. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides 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. c. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. 3. 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 a. or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.