ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170004566 APPLICANT REQUESTS: * upgrade to his bad conduct discharge to either a general under honorable conditions or honorable discharge * that his general education diploma be reflected (item 16 high school graduate or equivalent) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 that it has been so long and it took him 30 years to get a hold of his DD Form 214 (Certificate of Release or Discharge from Active Duty). He is now a grown man and he was a lost kid back then with no guidance. He has moved on in life and he is proud to have served his country. He just wants to make everything right for his mistake. He got his general education degree at Fort Riley, Kansas Army Retraining Brigade in 1981. The records do not show this and he lost his diploma. He would love to have his diploma replaced and record corrected. He would like to request an upgrade of his bad conduct discharge to either a general, under honorable conditions or honorable discharge. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (RA) on 7 June 1979. b. He served in Germany from 12 November 1979 to 28 December 1980. c. He accepted nonjudical punishment on 25 January 1982 for failure to be at his prescribed place of duty on 13 January 1982. His punishment included reduction to the grade of private/E-1. d. Summary Court-Martial Order 8, dated 29 December 1980, shows the applicant was convicted of one specification of the wrongful possession of marijuana in the hashish form. The court sentenced him to reduction to private/E-1, forfeiture of pay, and 30 days of hard labor with confinement. The convening authority approved his sentence. e. Special Court-Martial Order 64, dated 18 August 1982, shows the applicant was arraigned, tried, and convicted for: * one specification of unlawfully entering a room occupied by sergeant X____ with intent to commit a criminal offense * one specification of stealing: one pioneer turntable, one AKA I stereo cassette deck, one pioneer integrated amplifier, one sound craftsman graphic equalizer, two Marantz stereo speakers valued at $550 * one specification of wrongfully and unlawfully subscribe under lawful affirmation a false statement in substance as follows: “That he did not steal the stereo from sergeant X____. room, which statement he did not believe to be true.” f. The court sentenced him to be discharged from the service with a bad conduct discharge, to be confined to hard labor for 5 months, and to forfeit $367 pay per month for 5 months. g. The convening authority approved the sentence but the execution of that portion thereof pertaining to confinement at hard labor in excess of confinement at hard labor for 100 days and forfeitures in excess of forfeitures of $367.00 pay per month for 3 months is suspended for 6 months, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. Forfeitures shall apply to pay becoming due on and after the date of this action. The record of trial is forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. h. Special Court-Martial Order 105, dated 28 July 1983, shows the sentence had ben afformed and the portion of the sentence pertaining to confinement has been served. i. His was discharged from active duty on 15 August 1983. His DD Form 214 shows he was discharged under the provisions of AR 635-200 (Personnel Separations-Enlisted Separations) chapter 3 as a result of court-martial with a bad conduct discharge. Item 16 is marked no for high school graduate or equivalent. It also shows that he completed 3 years, 4 months, and 29 days of active duty service with 270 days of lost time. He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Expert-Marksmanship Qualification Badge with rifle Bar * Expert-Marksmanship Hand Grenade Qualification Badge 4. AR 635-5 (Personnel Separations –Separation Documents) states that item 16 reflects whether the Soldier is a high school graduate or equivalent. 5. AR 635-200, chapter 3 of this regulation states 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 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 the multiple offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. The applicant’s record is void of information showing he completed a high school equivalency diploma during his period of active service. The Board agreed there is insufficient evidence to grant relief. 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. 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 Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Chapter 3 of this regulation states 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. 3. AR 635-5 (Personnel Separations –Separation Documents) Item 16 is for high school graduate or equivalent. It states that item 16 is self-explanatory. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004566 0 6 1