ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20170008761 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter, undated * 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 a BCD was awarded to him at court-martial by the judge alone was extreme for the circumstances. The defense counsel provided to him at the time told him he had no choice but to plead guilty because he had no case. He did not have a fair opportunity to give all of his history and why he wrote the checks so the judge would understand it was not done maliciously but out of ignorance. He was made to enlist in the Army by his parents at 17 years old. Stationed in Germany, he wrote bad checks with no understanding of what he was really doing and no understanding of how to manage money. Restitution was made by a family member but he was later taken to a court-martial, judged alone and given a BCD which was extreme for the crime he committed. a. He requests consideration for upgrading his BCD to general under honorable conditions. He realizes it is almost 30 years after the fact. He never had an offer of help with this issue until now. A social services case manager who retired from the Navy as a senior chief legal man thought he could try. b. In effect, he discusses how he dropped out of high school and his parents decided to make him join the military although he did not want to join. c. After basic training and advanced individual training he was stationed in Germany. He did not feel like he fit in the Army however, as his family made the decision for him. He tried to get out of the Army but was told to tough it out. He had just turned 18 years old and was legal to drink in Germany. Between February and April of 1988, he wrote $5,000 in bad checks although he knew nothing about managing money or balancing a checking account. He was young and trying to keep up with the other Soldiers in the company to fit in. He did not consider the consequences of his actions at the time, in fact he could not fathom the depth of the consequences at that time. d. When he was initially told of his predicament, his uncle, came over to Germany and paid off the checks. He worked with his military attorney to come up with a solution that would have kept him in the Army and kept him from disciplinary action. He and his uncle had some time off the post but once he returned, he agreed to and was placed in a program to divert him from being court martialed. He still wanted to get out but realized it was not going to happen, so he agreed to the terms. He was given extra duty and post restriction. He felt isolated so he left post again while on restriction. Within two weeks he went to court-martial with a judge alone. He pled guilty because he did not know any better and was young. He did not understand why he was being charged with uttering checks when his uncle paid restitution. At the court-martial, he was sentenced to 18 months in prison and did not understand why. He was sent to Leavenworth to complete his time. During his time his performance was exemplary. He learned his lesson and more about decision making. He learned he needs to have a commitment to doing something in order to move ahead in life. e. At this point in his life, he is living on the streets of Jacksonville, FL. With God’s grace, he is going to be able to enroll in a veterans program and find assistance with housing. He has lived for years under the shadows of the mistakes he made while he was 17 years old living in a place he did not want to be. He wants to be able to improve his life but the characterization actually stands in the way. His request is made in an effort to restore his dignity and ability to have a future working and giving back to the community as he has wanted to for many years but has done so in the shadows. He is worth giving this change in characterization and an opportunity to turn his life around. 3. The applicant provides: * A self-authored letter addressed above * His DD Form 214 which shows he was discharged on 5 May 1989 with a bad conduct character of service under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate)) 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 5 January 1987. He served in Germany from 23 May 1987 to 4 May 1988. b. On 17 December 1987, he accepted non-judicial punishment under article 15 for wrongful use of marijuana. He was reduced to private/E-1. c. General Court Martial Order Number 37, dated 5 July 1988 shows he was arraigned and tried before a general court-martial for: * the charge of making check, order or draft without sufficient funds and its three specifications of certain checks upon the American Express Bank totaling $360.00 between 13-30 November 1987; totaling $590.50 between 23 October and 6 December 1987; and totaling $510.00 between 24 October 1987 and 3 December 1987 * the charge of wrongful use, possession, etc., of controlled substance and its two specifications of wrongful use of marijuana on 4 April 1988 and wrongful use of marijuana on 11 February 1988 and 11 March 1988 d. The court sentenced him to be discharged with a bad conduct discharge, confinement at hard labor for 13 months, and forfeiture of all pay and allowances. e. On 5 July 1988, the convening authority ordered only so much of the sentence as provides for bad conduct discharge, total forfeiture of all pay and allowances, and confinement for 12 months is approved and, except for the part of the sentence extending to bad conduct discharge, will be executed. f. On 8 September 1988, U.S. Army Court of Military Review having found the finding of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such finding of guilty and sentence are hereby affirmed. g. General Court-Martial Order Number 122, dated 4 April 1989, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge will be executed. h. On 5 May 1989, he was discharged. His DD Form 214 show she was discharged in accordance with paragraph 3-11 of Army Regulation (AR) 635-200 (Personnel Separations) and received a bad conduct discharge in the rank of PVT/E-1 as a result of court-martial. He completed 1 year and 4 months of active service. He was awarded the Army Service Ribbon and Sharpshooter Qualification Badge (M-16). 5. By regulation, AR 635-200 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. 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. 6. 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 ABCMR 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. 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 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 short term of service completed prior to a pattern of misconduct, 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 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 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. 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 3-11 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. 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) AR20170008761 5 1