ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 April 2019 DOCKET NUMBER: AR20160018103 APPLICANT REQUESTS: An upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Report of Separation from Active Duty), for the period ending 28 April 1979 * DD Form 214 (Certificate of Release or Discharge for Active Duty), for the period ending 30 November 1988 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 his record is unjust, because his actions were not a true reflection of who he was as a Soldier. This all started in Wurzburg, Germany, when he was driving on base and was pulled over by the military police. When the police searched his car they recovered an illegal substance, which was not his. He had three passengers in the car and no one would claim the substance. He was later acquitted for the possession of an illegal substance. Following the incident, his commander continuously threatened and taunted him. He started to feel depressed and hopeless as the commander continued to call him racial slurs and threatened to kick him out of the military. Eventually, the pressure became too much and he went absent without leave (AWOL) before he turned himself in four months later. 3. The applicant enlisted in the Regular Army on 3 October 1979. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dated for the following offenses: * on 22 April 1980, for failing to go at the time prescribed to his appointed place of duty, at Fort Bragg, NC, on or about 8 April 1980 * on 22 October 1980, for disobeying a lawful order, at Fort Riley, KS, on or about 21 October 1980 5. Court-martial charges were preferred against the applicant. After consulting with counsel, the applicant accepted an offer to plead guilty to two counts of being AWOL, in exchange for the convening authority agreeing not to present any evidence pertaining to the remaining charges and specifications and agreeing to enter a finding of not guilty on those charges. 6. Before a Special Court-Martial on 26 August 1983, at Wurzburg, Germany, the applicant was convicted of violating Article 86 of the UCMJ. Specifically, he was convicted of two counts of being AWOL, from on or about 2 February 1983 through on or about 4 February 1983, and from on or about 9 March 1983 through on or about 3 June 1983. He was found not guilty [per the offer to plea agreement] of two other specifications. His sentence included confinement at hard labor for 35 days and his separation from service with a BCD. 7. Special Court-Martial Order Number 61, issued by the Headquarters, U.S. Army Training Center and Fort Dix on 21 May 1984, noted that his conviction and sentence had been affirmed and ordered his BCD to be duly executed. 8. The applicant was reported AWOL from the Personnel Control Facility (PCF), Fort, Dix, NJ, from on or about 18 June 1984 through on or about 27 April 1988, at which time he was apprehended by civilian authorities. 9. The applicant was returned to military control and sent to the PCF at Fort Knox, KY for processing. The clerk of court directed discharge per special court-martial order number 158, which was not available for review. 10. The applicant was discharged on 30 November 1988, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV (Dishonorable and BCD), and his service was characterized as bad conduct. The narrative reason for separation was "as a result of court-martial, other." 11. The applicant provides his DD Form 214 for the period ending 28 April 1979. 12. 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 considering discharge upgrades, the Board determined that relief was warranted. Based upon the passage of time and the guidance on liberal consideration and clemency, the Board recommended that the characterization of service be upgraded to Under Honorable Conditions (General). BOARD VOTE Member 1 Member 2 Member 3 X X X Full Grant : : : Partial Grant : : : Formal Hearing Grant : : : Deny BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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). 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, U.S. Code, 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 Army Board for Correction of Military Records (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. 2. Army Regulation 635-200, in effect at the time, set 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. Chapter 3 section IV (3-11) provided that a Soldier would be given a BCD 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. 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. 4. 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. ABCMR Record of Proceedings (cont) AR20160018103 4