ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20170007745 APPLICANT REQUESTS: an upgrade of his bad conduct discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 in his self-authored statement: a. He was truthful with the recruiter regarding his only criminal conviction, breaking and entering in 1976, he received in Florida. He served his time, he worked hard for and received his general education diploma (GED). He wanted to serve his country, which is why he enlisted. While stationed in Wiesbaden, Germany, he was arrested and convicted for possession of a firearm and drug paraphernalia. b. His assigned locker contained no contraband; however, the contraband found was in a common area accessible to all, most notably his roommate. Unbeknownst to him, his roommate made a deal with the prosecutors for a reduced sentence. The deal consisted of his roommate informing them of the applicant's contraband, which subsequently led to the search and seizure of the contraband. The contraband found belonged to his roommate; however, he was falsely accused of owning the contraband. c. All of these facts were brought to his counsel's attention. He was threatened and coerced. He was told that if he did not "cop-out'' to the charges, he would be sentenced to 15 years in Leavenworth instead of the plea bargain his counsel made. Being a black man in America in the 70's had left no doubt what the outcome of a trial would be in the military justice system, just as the civilian justice system had for him. d. All of the aforementioned are facts which will hold up under scrutiny and investigation, which is why he respectfully and humbly requests that justice finally be served in this matter. In addition to his upgrade request, he would like further relief deemed just and proper. 3. A review of the applicant’s service record shows: a. The applicant enlisted in the Army on 20 September 1978. b. On 21 February 1979, the applicant accepted nonjudicial punishment (NJP) for failing to obey an order given by an noncommissioned officer (NCO) on 15 February 1979. c. On 31 October 1979, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty on 24 October 1979. d. On 7 March 1980, the applicant accepted NJP for absenting himself without authority from 15 January 1980 until 1 February 1980. He was reduced to private/E-2. e. On 23 April 1980, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty on 21 March 1980. f. On 1 July 1980, the applicant accepted NJP for being indebted to American Express and dishonorably failing to pay said debt from 23 April 1980 to 6 May 1980. g. On 25 November 1980, he was convicted by a general court-martial of one specification of possession of a privately owned firearm not registered in accordance with United States Army Europe (USAREUR) 190-6 on 1 August 1980 and one specification of escaping from the lawful custody of the military police on 1 August 1980. The court sentenced him to be reduced to the grade of private/E-1, confined at hard labor for 15 months, total forfeiture of pay and allowances, and discharged from the service with a bad conduct discharge. h. On 23 December 1980, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. i. On 6 January 2017, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. j. General Court-Martial Orders Number 347, issued by the Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 22 May 1981, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. k. The applicant was discharged on 5 June 1981. His DD Form 214 shows he was discharged in the rank/grade of private/E-1, as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). (1) He completed 1 year, 10 months, and 4 days of active military service. He had lost time from 15 to 31 January 1981, from 15 to 26 June 1980, from 1 to 29 August 1980, and from 31 August 1980 to 14 May 1981. (2) His service was characterized as bad conduct and he was assigned the separation code JJD. (3) Block 18 (Remarks) reflects the applicant was placed on 22 days of excess leave from 15 May 1981 until 5 June 1981. 4. By regulation, 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. 5. 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. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the long pattern of misconduct and some of a serious and dangerous nature, 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. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel, as a result of court-martial. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 provides 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 3-7c 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, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 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. 2. 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 on the basis of 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) AR20170007745 4 1