ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20170008581 APPLICANT REQUESTS: an upgrade of his bad conduct discharge 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 * DD Form 214 (Report of Separation 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 he had an accident while in the Army. He fell down a telegram post, suffered head trauma and received several stiches in his chest. Also, he explained that requesting an upgrade to his discharge would change his life and he would be able to obtain medication and veteran services. He is disabled and receives Medicaid and $733 per month in Supplemental Security Income, however, it’s not enough and he’s concerned for his mental health. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 5 May 1976. b. On 18 February 1977, he accepted nonjudicial punishment, Article 15, for failure to go at the prescribed time to his place of appointed duty. He was reduced to the grade of E-2 (suspended), forfeiture of $50.00 pay, and 7 days extra duty. c. On 24 June 1977, he accepted nonjuidical punishment, Article 15, for being absent without leave on 21 June 1977. He was reduced to the grade of E-2 (suspended), forfeiture of $97.00 pay for 1 month (suspended), and 7 days extra duty. a. d. On 5 October 1977, he was convicted by a general court-martial of: * three specifications of willfully and wrongfully destroying window glass by breaking said glass * one specification of stealing one-portable radio-television set, one portable radio-cassette television and two pocket radios from a commercial business e. The Court sentenced him to confinement at hard labor for one year, bad conduct discharge, reduced him to the grade of E1 and forfeiture of $300 pay for 12 months. f. On 15 December 1977, the convening authority approved the sentence and ordered the sentenced executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. g. On 21 March 1978, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. h. Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 264, dated 2 May 1978, shows that after completion of all required post-trial and appellate reviews , the convening authority ordered the applicant’s reduction of grade to E1, forfeiture of $300 pay for 12 months and bad conduct discharge executed. i. On 8 June 1978, the applicant was discharged from the Army under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with a Bad Conduct Discharge Certificate. His DD Form 214 (Report of Separation From Active Duty) shows he completed 4 months and 22 days of active service and 252 days of lost time. 4. On 28 November 1979, the Army Board of Correction of Military of Records denied his petition for an upgrade of his discharge. 5. By regulation, (AR 635-200), a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been 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. 1. 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 short term of service completed prior to the misconduct, the misconduct involving criminal behavior, as well as the lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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. 0 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 Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 of this regulation states that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been 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 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. The 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, an injustice, or clemency 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.