IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20170001108 APPLICANT REQUESTS: * Upgrade of his bad conduct discharge to general under honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * Letter of support from applicant's drug treatment program case manager * Letter of support from applicant's employer * Letter of support from applicant's friend FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (U.S. Code), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he felt like his court-martial punishment was a little too harsh for a first-time offender. He provides additional details in a self-authored statement: a. He appreciated having the opportunity to protect and serve his country; he learned a lot that he still holds dear from his time in the Army, but, after he had been on active duty for almost 2 years, he made a mistake that he still regrets: he took a lady's purse. He was immediately taken into custody by the police and, when his unit finally got him back to the barracks, the company commander called the applicant into his office. The applicant begged his company commander for mercy because, for the applicant, the act of stealing was totally uncharacteristic. b. The commander called him back in after about 2 weeks and told the applicant he was being court-martialed; despite the applicant explaining he had never been in trouble, never even received an Article 15 (nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ)), the commander nonetheless said the applicant would face trial because "they wanted to make an example out of me." c. The applicant went about his duties for a few more weeks until the date of his court-martial; even though he begged for another chance during his trial, the court went ahead and sentenced him to 9 months at Fort Leavenworth, KS (location of the U.S. Disciplinary Barracks). The applicant was devastated by the sentence and shed a lot of tears as a result, but he decided to man-up and take responsibility for what he had done. The applicant only wishes he could describe to the Board how much he loved being in the military, and, in effect, how badly he felt that his misconduct ended his career. d. The applicant did his time and, to this day, has not stepped back into a prison or jail. Granted, his "life is no story book"; he has been homeless a couple of times, but his higher power has always helped him to find a way to take care of his family. He has never since seen fit to take anything from anyone or to commit any type of crime. He simply asks the Army find a way to forgive him for what he did so that he can become eligible for benefits (apparently referring to Department of Veterans Affairs' (VA) benefits). e. He contends he learned from the mistake he made 37 years ago, and he just wants the opportunity to, perhaps, go back to school; become a better citizen and father/grandfather; and find a residence he can finally call home. People often ask the applicant if he was ever in the military, and they say he looks like a Soldier; because he is ashamed what he did, he always tells them, "No." 3. The applicant provides three letters of support: the first affirms the applicant has been enrolled in a drug treatment program since 2013 and has maintained his sobriety; the second is from his employer who states the applicant has been a solid and reliable employee with demonstrated leadership qualities; and the third is from a friend who has known the applicant for about 10 years and can vouch for the applicant's trustworthiness. The friend additionally affirms the applicant has performed volunteer work and always tries to apply the Bible's principles for better living. 4. The applicant's service records show: a. On 18 July 1978, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. Following initial training, orders assigned him to Fort Hood, TX; he arrived at Fort Hood on or about 1 April 1979. Effective 1 November 1979, his Fort Hood chain of command promoted him to specialist four (SP4)/E-4. b. In or around December 1979, orders reassigned the applicant to Germany, and he arrived on 18 January 1980. On 19 November 1980, a general court-martial convicted the applicant of UCMJ offenses. (1) Consistent with the applicant's plea, the court found him guilty of stealing a female German National's purse and her German currency in the amount of about $560. (2) The court sentenced the applicant to a dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and two years' confinement. (3) On 8 December 1980, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, 9 months' confinement, forfeiture of all pay and allowances, and reduction to private/E-1; pending completion of the appellate review, the convening authority directed the applicant be confined at the U.S. Disciplinary Barracks at Fort Leavenworth. c. On 26 February 1981, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence in the applicant's court-martial case. d. On 18 May 1981, a general court-martial order announced the completion of the appellate process and directed the applicant's bad conduct discharge; on 8 June 1981, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 4 months, and 1 day of his 3-year enlistment contract, and that he was awarded or authorized two marksmanship qualification badges. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 6. The applicant states his court-martial punishment was too harsh, and he asserts his commander told him the reason he was facing trial by court-martial charges was because "they wanted to make an example out of me"; prior to his court-martial, he had had no prior instances of misconduct. The applicant believes he has learned from his mistake and seeks this upgrade so that he can, in effect, gain access to VA benefits. a. 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. b. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the results of a court- martial, the reason for his separation and whether to apply clemency. The Board found sufficient evidence of in-service mitigating factors for the misconduct. The Board found that the punishment was too harsh and found that the letters of reference showed post- service conduct sufficient to weigh a clemency determination. Based on a preponderance of evidence, the Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XX 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’s DD Form 214 for the period ending 8 June 1981 showing his character 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 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. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 11-2 (DD Form 259A (Bad Conduct Discharge)). A Soldier was given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. 3. 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- 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 on the basis of 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. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001108 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170001108 6 ABCMR Record of Proceedings (cont) AR20170001108 5