ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20160019294 APPLICANT REQUESTS: An upgrade of his bad conduct discharge (BCD) 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 11 November 2016 (two copies) 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 as a young enlisted man, he was not involved with or aware of actions of a few Soldiers who were charged with theft of Government property. He was deemed less than honorable as a platoon leader when those Soldiers were convicted. He did not understand the repercussions and stigma of this involuntary action and it has haunted him for decades. He believes the charge was unjust but he never disputed it because of the difficulties at the time. 3. The applicant enlisted in the Regular Army on 29 September 1981. He reenlisted in the Regular Army on 5 June 1984. 4. Special Court-Martial Order Number 23, issued by the U.S. Army Transportation Center and Fort Eustis, VA on 23 May 1986, shows that the applicant was convicted, pursuant to his pleas, on 11 April 1986, for the following offenses: * conspiring with another Soldier to commit larceny of two Rail and Marine tool kits, the property of the U.S. Government * stealing three Rail and Marine tool kits, the property of the U.S. Government * two specifications of failure to go to his appointed place of duty (company formation) * 5. The applicant's sentence included his reduction to the rank/grade of private/E-1, forfeiture of $400.00 pay per month for five months, confinement for 45 days, and his separation from service with a BCD. 6. The convening authority approved only so much of the sentence that pertained to the reduction to the rank/grade of private/E1, forfeiture of $400.00 pay per month for three months, confinement for 45 days, and his separation from service with a BCD. 7. The U.S. Army Court of Military Review affirmed the special court-martial findings and sentence in the applicant's case. The applicant did not petition the U.S. Court of Military Appeals for a grant of review. 8. Special Court-Martial Order Number 9, issued by Headquarters, U.S. Army Transportation Center and Fort Eustis, VA on 19 August 1987, noted that the approved sentence had been finally affirmed and ordered the BCD executed. 9. The applicant was discharged on 29 September 1987. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. 10. 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. 11. 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 partial relief was warranted. Based upon the seriousness of the misconduct which led to the applicant’s discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. Howewer, the Board did note that the applicant had a prior period of honorable service which is not currently depicted on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 29 September 1981 until 3 June 1984.” 2. 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. 6/17/2019 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.