ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 April 2019 DOCKET NUMBER: AR20170000110 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC87-00831A on 4 March 1992. Specifically, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 July 1981, to show his service was characterized as under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC87-00831A, on 4 March 1992. 2. The applicant states he is sorry for what he did when he was young. He feels that he has paid enough for his wrong doing and he has not been in any trouble since the time he was in the Army. He has continued on with his life and has given his life over to the Lord. He has pastored two churches during the nineties and has travelled as an evangelist, helping people turn their life around as he teaches them about the Lord. He holds a job as a maintenance man and is asking for clemency to further support the betterment and change in his life. 3. The applicant enlisted in the Regular Army on 1 September 1976. 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions for the stated offenses: * On 26 October 1979, for without authority, failing to go at the prescribed time to his appointed place of duty, on or about 22 September 1979 * On 4 March 1980, for without authority, absenting himself from his unit from on or about 29 January through on or about 31 January 1980, and from on or about 12 February through on or about 13 February 1980 5. General Court-Martial (GCM) Order Number 30, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized) Fort Carson, Colorado on 15 November 1980, shows the applicant was convicted on 5 August 1980 of wrongfully selling, without proper authority, military property of the U.S. Government; stealing; and for wrongfully selling U.S. property without authority, to a special agent, knowing that the property that was being sold was the property of the U.S. Government. 6. The applicant was sentenced to confinement for two years, reduction to the rank/grade of private (PV1)/E-1, forfeiture of $150.00 dollars pay per month for 24 months, and a separation from service with a BCD. The General Court-Martial Convening Authority approved applicant's sentence pertaining to his reduction to PV1/E-1, confinement for eighteen months, forfeiture of pay, and his separation from service with a BCD. 7. GCM Order Number 261, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 15 April 1981, affirmed the applicant's sentence, including his separation from service with a BCD. His separation was ordered duly executed. 8. The applicant was discharged on 8 July 1981. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, para 11-2, and he received a BCD. 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, the Board found that relief was not warranted. Based upon the multiple occasions of UCMJ misconduct, some of which is serious in nature, the Board found that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant X X X : Deny 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. 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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 11 provided that an enlisted person 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. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 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) AR20170000110