ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2019 DOCKET NUMBER: AR20170005405 APPLICANT REQUESTS: in effect, reconsideration of an upgrade to his bad conduct discharge (BCD) to general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 AR20150014664 on 1 December 2016. 2. The applicant provided new evidence and arguments not previously considered by the Board that warrants consideration at this time. 3. The applicant states in effect, he is requesting reconsideration of his case, as the previous Board mentioned an Article 15 for driving under the influence. He never received an Article 15 and the only misconduct in his military service was the court martial, which he was convicted. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 26 November 1982. b. Special Court Martial (SPCM) Order Number 14, dated 28 March 1988, shows he was arraigned and convicted of three specifications of committing an indecent act upon the body of a female. c. He was found guilty and received a BCD, confinement for 3 months, and reduction to the lowest enlisted grade of private (PVT)/E-1. The finding was approved and except for the BCD, was executed. The sentence was adjudged on 26 January 1988. d. On 21 July 1988, the United States Army Court of Military Review found the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence were affirmed. e. In a memorandum, the applicant acknowledged the receipt of the basic correspondence and did not desire to submit matters for the convening authority’s consideration. f. SPCM Order Number 226, dated 7 November 1988, shows that after completion of all required appellate reviews, the convening authority ordered the BCD executed. g. On 29 December 1988, he was discharged with a BCD characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 10 months, and 22 days of net active service with lost time from 26 January to 7 April 1988 (76 Days) and excess leave from 8 April 1988 to 29 December 1988 (266 days). 5. The applicant applied to the Army Discharge Review Board, and on 19 August 1997. His request for an upgrade to his characterization of service was denied. 6. The applicant applied to the ABCMR and on 1 December 2016, his request for an upgrade to his BCD was denied. The Board based their decision on the facts of his SPCM, and that his trial by SPCM was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations. 7. By regulation 635-200 (Personnel Separations – Enlisted Personnel), a member will be given a BCD pursuant only to an approved sentence of a general or SPCM. The appellate review must be completed and the affirmed sentence ordered duty executed. His record shows the appellate review was completed and his sentence affirmed and executed. 8. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully reconsidered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense (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 reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct, that the applicant showed no remorse, and he provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation 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 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 AR20150014664 on 1 December 2016. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets for the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge), 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty. b. Paragraph 3-7b (General Discharge), 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. Paragraph 3-7c (Under Other Than Honorable Conditions), a discharge under other than honorable conditions is an administrative separation for service under condition other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reason, or for the good of the service. d. Paragraph 3-11 (BCD), a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duty executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005405 4 1