ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170006853 APPLICANT REQUESTS: an upgrade of his dishonorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal 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. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 22 November 1968. He reenlisted in the RA on 25 August 1970 and 30 April 1976. He was issued separate DD Form 214 for each period of active service. b. He served in: * Korea, 18 December 1969 to 18 January 1971 * Okinawa, 3 July 1971 to 14 September 1971 * Germany, 25 July 1972 to 23 July 1974 & 14 March 1980 to 15 March 1982 * Korea, 6 December 1976 to 2 December 1977 c. He reenlisted on 15 November 1979. He accepted nonjudicial punishment on/for: * 5 June 1972 for absenting himself from his unit from 16 April to 14 May 1972 * 13 December 1972 for stealing * 9 April 1973 for failing to obey an lawful order * 4 October 1977 violating a lawful general order * 4 May 1978 for disobeying a lawful command from A commissioned officer * 15 September 1981 for disrespecting a commissioned officer d. On 17 September 1982, he was convicted by general court-martial of: * five specifications of sodomy with children under the age of 4 and 6 * one specification of carnal knowledge with a child under the age of 6 e. The court sentenced him to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement at hard labor for 25 years, and to be dishonorably discharged. f. General Court-Martial Order Number 64, dated 17 September 1982, approved the sentence and forwarded the record to the Judge Advocate General of the Army for review by a Court of Military Review. g. On 8 June 1983, the appellate rendered a decision that states the court having found the approved findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record that they should be approved, such findings of guilty and the sentence are affirmed. h. General Court-Martial Order Number 20, dated 13 January 1984, finally affirmed the sentence to dishonorable discharge, forfeiture of all pay and allowance becoming due on and after the date of the convening authority’s action, confinement to hard labor for 25 years, and reduction to the grade of E-1, (but the execution of that portion thereof adjudging confinement to hard labor in excess of seven years is suspended for six months, at which time, unless the suspension is sooner vacated, the suspended portion shall be remitted without further action). The provisions of Article 71(c) having been complied with, the sentence would be duly executed. i. He was discharged on 17 January 1984 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-10 with a dishonorable discharge characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 4 months, and 2 days of active service with 10 years, 10 months, and 28 days of prior active service. It also shows he was awarded or authorized: * Good Conduct Medal (3rd Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * Marksmanship Qualification Badge with Rifle Bar (M-16) 3. By regulation, a member will be given a dishonorable 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. 4. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the pattern of misconduct, some involving serious criminal misconduct, 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. 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 Soldiers), 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 the 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. Paragraph 3-7c (Under Other Than Honorable Conditions) 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, homosexuality, security reasons, or for the good of the service. d. Paragraph 3-11 (Bad Conduct Discharge) 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. e. Paragraph 3-9 (Uncharacterized Separations) states a separation will be described as an entry level separation if processing is initiated while a member is in entry level status, except when characterization under other than honorable conditions is authorized. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military 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 UCMJ, 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 UCMJ 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 that Military Department 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 form 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 the 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. ABCMR Record of Proceedings (cont) AR20170006853 4 1