ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160019367 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement 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 that he would like his bad conduct (special court-martial-other) changed to honorable on a new and updated DD Form 214 (Certificate of Release or Discharge from Active Duty). He has honorable active service from 7 April 1977 to 8 October 1979, 9 October 1979 to 11 July 1985, and 12 July 1985 to 11 July 1991, which included four Good Conduct Medals. He currently serves as a pastor. 3. The applicant provides a self-authored statement that states he was retained for 18 months for something he was not guilty of or did not do. They needed someone to make an example of and that was him. When he first arrived at the unit they were going through an investigation and with him being new they placed him in this platoon as the noncommissioned officer (NCO) in Charge. The applicant states that they charged him for indecent assault on a Soldier and it was a setup from the start. He moved on and became a preacher and when he was let out on parole he got a job and kept working. 4. A review of the applicant’s service record show: a. He enlisted in the Regular Army (RA) on 7 April 1977. He reenlisted in the RA on 9 October 1979 and on 12 July 1985. a. b. He served in Germany from 12 November 1982 to 10 August 1985 and from 15 April 1987 to 11 April 1990. c. He was convicted by general court-martial on 19 November 1991 for two specifications of indecent assault. The court sentenced him to reduction to the grade of E-1, confinement for 4 years and 6 months, and to be discharged with a bad conduct discharge. d. On 30 June 1992, the U.S. Army Court of Military Review affirmed the findings of guilty. e. He was discharged from active duty on 30 July 1993, with a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 14 years, 7 months, and 12 days of active service. It also shows he was awarded or authorized: * Good Conduct Medal (4th Award) * National Defense Service Medal * Army Achievement Medal (1 Oak Leaf Cluster) * NCO Professional Development Ribbon with numeral 1 * Army Commendation Medal * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge 5. By regulation, 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. 6. 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 not warranted. Based upon the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was 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: 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 insufficient as a basis for correction of the records of the individual concerned. 5/13/2019 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 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge) states 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. 3. 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. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- 1. martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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.