ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 October 2019 DOCKET NUMBER: AR20170003243 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his bad conduct discharge to honorable, under other than honorable conditions, or general under honorable conditions. 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 from the Armed Forces of the United States (U.S.)) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090021144 on 22 July 2010. 2. The applicant states he is requesting an upgrade because of health reasons and requires medical attention. During his time in service at Fort Hood, TX, he was being harassed by a former Soldier and went to his chain of command with a complaint. Another Soldier from another company (CO) on post was on his CO grounds to cause him bodily harm. If his superiors had taken steps to keep him safe, his altercation and court martial would not have taken place. The Soldier in question was wrong for being on the compound 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 April 1978. He completed basic training and advanced individual training on or about August 1978. He held military occupational specialty 64C (Motor Transport Operator). b. He was assigned to Bravo Company, 502nd S&T Battalion, 2nd Armored Division, Fort Hood, TX from 4 August 1978 to 31 January 1980. c. General court-martial order (GCMO) number 11, dated 27 March 1980, shows the applicant was convicted for two specifications of attempt to murder two Soldiers by means of shooting them with a shotgun on 27 October 1979. The court sentenced him to be reduced to private/E-1, confined at hard labor for one year, forfeit all pay and allowances, and to be discharged from the service with a bad conduct discharge. The sentence was adjudged on 22 January 1980. On 27 March 1980, the convening authority approved the sentence and after appellate review on 10 July 1980, the findings of guilty and the sentence were affirmed. d. GCMO number 716, dated 10 November 1980, shows the applicant’s confinement had been served. He was a member of the Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth, KS, and placed on excess leave without pay from 29 October to 22 December 1980. e. On 22 December 1980, he was discharged from active duty. He was discharged under the provisions of paragraph 11-2, AR 635-200 (Personnel Separations – Enlisted Personnel), with a bad conduct characterization of service. He completed 1 year, 8 months, and 2 days of net active service this period and had lost time from 28 October 1979 to 28 October 1980. His DD Form 214 shows he was awarded or authorized the Marksmanship Badge (M16) and the Drivers Badge. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. On 24 November 2009, the applicant requested an upgrade of his discharge through the ABCMR. On 22 July 2010, the ABCMR determined that the evidence presented did not demonstrate the existence of probable error or injustice. The Board determined that the overall merits of the case were insufficient and denied his petition for an upgrade of his discharge. 6. By regulation, AR 635-200, 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. 7. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon serious, violent and criminal offenses which led to the applicant’s separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR20090021144 on 22 July 2010. 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 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (1), an honorable discharge is a separation with honor. 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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b, a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13c, 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, for security reasons, or for the good of the service. d. Paragraph 11-2 (Bad Conduct Discharge ), a member 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. 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 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003243 3 1