ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: Need medical advisory DOCKET NUMBER: AR20170008621 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to an honorable 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) * Operation Just Cause Certificate * Certificate of Achievement * 4 Character Letters 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 a wreck in 1988, which sent him over a cliff and he had to get a wire steel in his hand. In addition, he went to war in Panama and after a month he had witnessed many people being killed and death all around. He started drinking heavily and made bad decisions and he also started hanging with Soldiers that were involved in crimes. The Army was trying to discharge him after many incidents, but they kept him, not knowing if the head injury would affect him and his mental and physical status. He was dealing with a lot of mental and personnel issues at the time and he would like to get his discharge upgraded. 3. The applicant provides: a. The applicant provides a character letter from the Mayor of the town of Jonesboro. The mayor is a longtime acquaintance and wanted to speak on behalf of the applicant to support his character and to talk about his involvement in the community. The Mayor feels the incidents faced in combat caused most of the applicant’s problems. b. The applicant provides a character letter from his pastor of 9 years. The pastor has counseled him for many years and believes his head injuries and the trauma occurred in combat has caused many of the applicant issues and with the help of Veterans Administration, the applicant has recovered and he would like for the board to consider his upgrade. c. The applicant provides character letter from his father, which states the applicant wanted to serve his country after high school graduation and he realizes after his son returned from the war in Panama he noticed the issues his son was facing and got him to get some help. He believes his son is a great son, father and husband and he would like for the Army to support his request. d. The applicant provides character letter from a longtime friend since 1975, who works at the Jackson Parish Police Department and states that the applicant is an outstanding citizen and is great in the community as he works with the youths. The applicant is a positive role model and is a disabled veteran that needs help with his combat injuries. 4. A review of the applicant’s service record shows: a. The applicant enlisted in the Regular Army 6 October 1987. b. On 15 November 1990, he accepted nonjudicial punishment under the provisions of Article 15 for military confinement from 14 November 1990 to 29 October 1991. c. On 10 December 1990, he was convicted by a general court–martial of five specifications of aggravated assault, attempted larceny and resisting apprehension. d. The court found him guilty and sentenced him to reduction to the lowest enlisted grade of E-1, forfeiture of all pay and allowances, confinement at hard labor for 14 months, and a bad conduct discharge. e. On 10 December 1990, the convening authority approved the sentence of reduction to E-1, forfeiture of all pay and allowances, confinement at hard labor for 14 months, and a bad conduct discharge, 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. f. On 19 April 1991, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. g. General Court-Martial Order Number 82, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill ,OK, on 23 December 1991, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge duly executed. h. The applicant was discharged on 17 January 1992. 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), chapter 3, with a bad conduct discharge. He completed 3 years, 2 months, and 14 days of creditable active military service with lost time from 14 November 1990 to 29 October 1991. His DD Form 214 also shows he was awarded or authorized the: * Army Service Ribbon * Sharpshooter Qualification Badge with Rifle and Grenade Bars * Combat Infantryman Badge * Dragon Gunner Marksman Ship Badge * Armed Forces Expeditionary Medal 5. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation (AR 635-200), a Soldier 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. 7. 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 seriousness, criminal nature of the misconduct, as well as the violent behavior against others involved in the 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 635-200 provides for the separation of enlisted personnel: 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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 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 that Military Department. 5. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation and job history * Availability of other remedies * Whether misconduct may have been youthful indiscretion * Character references ABCMR Record of Proceedings (cont) AR20170008621 5 1