ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170002062 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 he did not receive intervention and treatment for his drug and alcohol addiction. He was 18 years old and did not know that he was an addict and the problems he was having were due to him being addicted to drugs and alcohol. He felt that if he would have received proper treatment for his disease, he would have received an honorable discharge from the Army. 3. The applicant provides a self-authored statement in hopes of receiving an upgrade of his bad conduct discharge. a. He explained that he accepted responsibility for the actions that caused him to receive the bad conduct discharge back in 1978 as well as now. He would just like for the Board to consider the fact that he was only 18 years old when it happened. During that time he was suffering from the disease of addiction to drugs and alcohol, he was under the influence of Phencyclidine (PCP) when he committed the offenses. Even though he was a young drug addict, he managed to perform his duties well and respected his supervisors like he was supposed to. He was under the influence of drugs (PCP) and hallucinating when he committed the offenses he was charge with. He never meant to cause any harm to anybody. His desire was to have a long military career back then and he did not know he was an addict nor did he understand the a. disease and concept of addiction as he does now. He strongly believed if he had received the proper intervention and treatment the outcome of his situation would have been different. He does not believe he would have received a bad conduct discharge. b. For the last past 36 years he has suffered the humiliation and denial of Veterans services because of his disease. He is now a born again Christian, he attends Alcoholics and Narcotics Anonymous meetings regularly and works the 12 step program of recovery. He is not perfect but he is striving to live a good life and to make amends to all the people he harmed. He realized he can’t go back and undo what has happened but he can move forward and try to make a difference. Due to the very nature of the disease of addiction he is hoping that the context of a sick young man at the time will be taken into consideration. He was not of sound mind and was badly impaired when he committed the offenses he was charged with. 4. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 14 June 1977. b. On 20 May 1978, the applicant allegedly attempted to take a privately owned pickup truck while on temporary duty at Fort Chaffee and under the influence of alcohol. c. On 2 June 1978, after returning to his unit he was involved in two more incidents one of wrongful appropriation of an electric guitar and theft of a field jacket both from the same Soldier. d. The offenses became the basis for Special Court-Martial (SPCM) charges referred to a court empowered to grant a bad conduct discharge. e. On 31 August 1978, the applicant requested a discharge for the Good of the Service and on 12 October 1978 the General Court-Martial Convening Authority denied his request. f. On 25 October 1978, he was convicted by a special court-martial of one specification of attempt to wrongfully appropriate a pickup truck and one specification of wrongfully appropriating a guitar and stealing a field jacket. The court sentenced him to confinement at hard labor for 30 days, reduction to the grade of E-1, forfeiture of $100.00 and a bad conduct discharge. g. On 15 November 1978, the convening authority approved the sentence which included a punitive discharge. The execution of the punitive discharge was withheld pending completion of further appellate review in his case and he was placed on excess leave. a. h. On 13 February 1980, SPCM Order Number 29 indicates that the findings and sentence were affirmed pursuant to Article 66. The provisions of Article 71 (c) were compiled with and the discharge was ordered executed. i. The applicant was discharged on 29 February 1980. 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). (1) He completed 2 years, 7 month, and 24 days of active military service with lost time from 25 October 1978 to 16 November 1978. (2) His service was characterized as under other than honorable conditions and he was assigned the separation code JJD. 4. On 29 October 1981, the Army Discharge Review Board reviewed the applicant’s case and denied his request. 5. By regulation, 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. 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 and criminal nature of the misconduct which led to the discharge, 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. 6/4/2019 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) sets forth the basic authority for the separation of enlisted personnel, as a result of court- martial: a. Paragraph 1-13a (Honorable Discharge) provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) 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 1-13c (Under other than Honorable) 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 11-2 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 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 Army Board for Correction of Military Records 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. 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 1. 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.