IN THE CASE OF: BOARD DATE: 9 April 2020 DOCKET NUMBER: AR20170002910 APPLICANT REQUESTS: Correction of his record to show his Bad Conduct Discharge (BCD) was upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (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 was going through depression at the time the accident occurred which led to his BCD. 3. A review of the applicant’s official records show the following: a. On 28 September 1978, the applicant enlisted in the Regular Army. b. On 29 September 1981, the applicant was arraigned by special court-martial convened by the Commander, Headquarters, 1st Cavalry Division, Fort Hood, TX, and was tried for violating the Uniform Code of Military Justice. The court found him guilty of the following charges; willfully suffer a 45 caliber pistol, wrongfully transferring marijuana, unlawfully receiving a U.S. Army 45 caliber pistol. c. The court sentenced him to reduction to the lowest enlisted grade of E-1, confinement at hard labor for 6 months, and upon completion of confinement, separation from the service with a BCD. d. On 2 December 1981, the convening authority approved and ordered the applicant sentenced to confinement at hard labor for 4 months (suspended until 29 March 1982 unless sooner vacated), and reduction to the lowest enlisted grade. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. e. On 20 July 1982, the U.S. Army Court of Military Review affirmed and approved the findings of guilty and the sentence. The sentence of confinement was remitted. f. On 10 November 1983, the applicant was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with a bad conduct characterization of service by reason of court-martial. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 1 month and 13 days of net active service. 4. On 2 March 2020, the Army Review Boards Agency psychologist reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, she opined that there is no documentation supporting a behavioral health diagnosis at the time of the applicant’s discharge. No documentation was submitted regarding any diagnosed behavioral health conditions; (b) A review of his military records indicate that the applicant did meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness); (c) There is no behavioral health condition to consider with respect to mitigation of the misconduct that led to his discharge. If there had been a diagnosis of depression, it would not be a mitigating factor for the premediated and purposeful misconduct that led to his discharge. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10 USC, 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. 7. AR 635-200, in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that 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 states 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 11-2 states that a Soldier will be given a bad conduct discharge 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. 8. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s request, his record of service, the frequency and nature of his misconduct, the outcome of court-martial proceedings, and the reason for his separation. The Board considered the review and conclusions of the advising official as related to the applicant’s claim. The Board found insufficient of in-service mitigation for the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the determined that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 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 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. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10 USC, 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. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that 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 states 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 11-2 states that a Soldier will be given a bad conduct discharge 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. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002910 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1