ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20160018115 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character reference letters * DA Form 2-1 (Personnel Qualification Record) * Post-discharge certificates * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Form 21-4138 (Statement in Support of Claim) * U.S. Army Reserve Discharge Orders 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 his discharge was inequitable because it was based on 84 months of service with no other adverse action. 3. The applicant provides: a. Multiple character reference letters from individuals who describe him as an honest, trustworthy, and hard-working individual. He is straightforward and true in all aspects. He has contributed to society through hard work, community involvement, and taking care of his customers. b. Certificate of completion of Commercial Load Calculation and Duct Design; Certificate of Licensure from the State of Georgia as a Conditioned Air Contractor, Class 1; and his July 1986 U.S. Army Reserve discharge order. c. Statement in Support of Claim wherein he states that he made a stupid choice in 1998. He took some tool boxes from the motor pool and he has lived with and regretted this choice ever since. The tool boxes were returned a few days later and he was prosecuted for larceny. His assigned attorney told him several times that he did not want to go in front of the current sitting judge. The current judge was getting ready to be replaced with a new judge and giving the maximum time to everyone. His attorney had tried to get his court date rescheduled hoping for the new judge to come in and was not able to do so. A few days before his day in court, he went absent without leave (AWOL) so he wouldn't have to go before him. On his return a few weeks later, the new judge was indeed on the bench. His attorney said that he couldn't tell him to do so but he (the applicant) had done the best thing. Her ended up getting sent to Fort Riley, KS, where he did get paroled and discharged from the Army with a Bad Conduct Discharge. He has an Honorable Discharge for active service from 1981-1984 and an Honorable Discharge from the Army Reserve from 1984-1986. He is currently working on upgrading the Bad Conduct Discharge. The benefits he is seeking are from his Honorable Discharges from1981-1986 when his specialty was Indirect Fire Infantryman 4. Review of the applicant's service records shows: a. He enlisted in the Regular Army (RA) on 29 October 1981 and he held military occupational specialty 11C (Indirect Fire Infantryman). b. He was honorably release from active duty on 26 October 1984 and transferred to the U.S. Army Reserve Control Group. c. He was honorably discharged from the U.S. Army Reserve on 15 July 1986 and enlisted in the RA on the same date. d. On 12 April 1988, he departed his Fort Riley unit in an AWOL status and on 12 May 1988, he was dropped from the rolls as a deserter. He returned to military control and was placed in confinement on 28 May 1988. e. On 15 August 1988, he was convicted by a general court-martial of one specification of larceny of government property, one specification of wrongfully appropriating a military truck, and one specification of desertion. f. The court found him guilty and sentenced him to reduction to the lowest enlisted grade of E-1, forfeiture of $400.00 pay per month for 15 months, confinement for 15 months, and a bad conduct discharge. g. On 22 September 1988, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. h. The U.S. Army Military Court of Review affirmed the findings of guilty and the sentence. The U.S. Court of Military Appeals denied his petition for a grant of review. i. General Court-Martial Order Number 226, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 12 July 1989, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. j. The applicant was discharged on 28 August 1989. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge. He completed 4 years and 6 months of creditable active military service during this period with lost time from 12 April to 26 May 1988, 28 May 1988 to 15 July 1989, and 16 Jul 1989 to 29 August 1989. His D Form 214 also shows he was awarded or authorized the: * Army Achievement Medal * Good Conduct Medal * Army of Occupation Medal * Army Service Ribbon * Overseas Service Ribbon * Expert Infantryman Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar 5. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 7. In reaching its determination, the Board can consider the applicant's petition and his service record 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. Based upon the applicant serving honorably for over six years and the demonstrated growth reflected within the character letters since the AWOL that resulted in discharge, the Board concluded that the characterization of service should be upgraded to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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, 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 provides 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 3-7c states 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, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation and job history • Availability of other remedies • Whether misconduct may have been youthful indiscretion • Character references ABCMR Record of Proceedings (cont) AR20160018115 5 1