ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170007830 APPLICANT REQUESTS: an upgrade of his under dishonorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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. 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 AR2002071037 on 28 August 2002. 3. The applicant states, in effect, he was in charge of four departments and it was hard to keep accountability of all the items, while he was stationed at Fort Sam Houston. 4. The applicant provides: a. A self-authored statement, which states, since his discharge, he has changed his life by helping change the lives of kids in the community. He have been asked to join the church as a Deacon and have opened up a store. He now realizes that his discharge has affected him and his family, but he is now a model citizen and would like have his discharge upgraded. b. A copy of a letter from the National Personnel Records Center informing the applicant that his completed application was forwarded to the Army Review Boards Agency. 5. A review of the applicant’s service record shows: 1. a. On 2 August 1974, he enlisted in the Regular Army. He served in Germany from June 1976 to April 1979. He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 2 June 1981. b. On 1 February 1990 nonjudicial punishment (NJP) was imposed against the applicant for being absent from his unit from 22 December until 26 December 1989: for disobeying a lawful order: and for dereliction of duty. c. On 9 July 1990, the applicant was notified that he was being recommended for a bar to reenlistment. The commander cited his failure to pay just debts and NJP that was imposed against him as the basis for his recommendation. The commander indicated that he had a history of irresponsibility in both his personal and military life and that he had not set the example as a noncommissioned officer should. The applicant submitted an appeal to his bar to reenlistment on 20 July 1990, however his appeal was denied. Accordingly, on 26 September 1990, he was barred from reenlistment. d. On 22 January 1992, the applicant was convicted by a general court-martial of dereliction of duty, larceny in the amount of $19,100.00 and forgery of a check in the amount of $19,100.00. He was sentenced to a dishonorable discharge, confinement for 3 ˝ years, reduction to the pay grade of E-1 and a forfeiture of all pay and allowances e. On 8 June 1992, the convening authority approved the sentenced as adjudged and except for the part of the sentence extending to a dishonorable discharge, the sentence was executed. f. On 16 September 1993, The United States Army Court of Military Review affirmed only so much of the sentence as provided for dishonorable discharge, confinement for 42 months, reduction to the pay grade of E-1 and forfeiture of all pay and allowances with the explanation that a sentenced to confinement should be adjudged in full days, months or years and fractions should not be employed. g. On 7 October 1994, the applicant was dishonorably discharged pursuant to a court-martial conviction, under the provisions of Army Regulation 635-200, chapter 3-10. * he completed 17 years, 5 months, and 20 days of active service and he was retained in service for 1365 for convenience of the government per AR 635-200 * he was awarded or authorized Good Conduct Medal (4thAward), Army Service Ribbon, , National Defense Service Medal Overseas Service Ribbon Driver/Mechanic Badge 6. By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 1. 7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 record, 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 AR2002071037 on 28 August 2002. 6/26/2019 X CHAIRPERSON Signed by: 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Separation–Enlisted Personnel, in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 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 AD or ADT, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. a. 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 from the service under conditions other than honorable. d. Paragraph 3-10 states a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. 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. //NOTHING FOLLOWS//