ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 October 2019 DOCKET NUMBER: AR20170010178 APPLICANT REQUESTS: an upgrade to his bad conduct discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States * DD Form 149 (Application for Correction of Military Record) * self-authored statement * reason for separation letter * involuntary excess leave correspondence * DD Form 214 (Report of Separation from Active Duty), ending 14 April 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 17 September 1984 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 (ABCMR) 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 stated this was one isolated incident in 8 years of service. 3. The applicant provided: a. A self-authored statement that stated in summary his discharge was unequitable because it was based on one isolated incident in his over seven years of military service and reserve time with no other punitive or adverse actions of his career. He has by no means to have ever dishonored his country. He whole heartily admitted to making a bad decision during the celebration of his promotion. Not only did his decision cost him his military career but a life, a friendship, a brother in service and burden on his family. This is the punishment that he will wear for a life time. He does not take it lightly and his life moving forward from the time he was confined until now has been a reconciling heart of life. b. An official letter from Headquarters, Army Field Artillery Center, Fort Sill, OK, to the applicant, dated 12 April 1979 informing him the reason for separation on 12 April 1979, is completion of required service, fully qualified for immediate reenlistment. c. His command’s recommendation and approval of involuntary excess leave status without pay and allowances while the appellate review was pending. d. Two DD Form 214 showing his period of service from 12 April 1976 to 12 April 1979, and 27 November 1979 to 17 September 1984. 4. A review of his service record shows the following: a. The applicant enlisted in the Regular Army on 12 April 1976. He reenlisted on 27 November 1979 and he voluntarily extended his 4-year enlistment by 20 months. b. His DA Form 2-2 (Insert Sheet to DA Form 2-1 Record of Court-Martial Conviction) shows he was convicted by a general court martial of one specification of operating a vehicle while drunk, and one specification of unlawfully killing a passenger in vehicle. The court sentenced him to reduction to the grade of E-1, confinement at hard labor for 7 months, forfeiture of $100 per month for 7 months, and a bad-conduct discharge. Adjudged 23 November 1983, and approved 23 December 1983. c. Four DA Form 4187 (Personnel Action) shows the applicant’s duty status change on: * 22 November 1983, present for duty to confined military authorities * 8 May 1984, confined military authorities to present for duty * 8 May 1984, present for duty to excess leave d. General Court Martial Order Number 73, dated 23 December 1983, charged the applicant with one specification of operating a vehicle while drunk and caused vehicle to injured two passengers Specialist Four X___ and X___ and one specification of operating a vehicle while drunk and by culpable negligence unlawfully killed passenger X___. The record of trail forwarded to The Judge Advocate General of the Army for appellate review. e. The Army Correctional Activity, Fort Riley, KS, approved involuntary excess leave without pay and allowances effective 8 May 1984, while the appellate review was pending under the provisions of Army Regulation (AR) 630-5, paragraph 5-4. f. The applicant underwent a mental evaluation on 6 May 1984, the examiner stated that he had the mental capacity to understand and participate in the proceedings. g. On 16 May 1984, the appellate authority rendered a decision in consideration of errors and asserted also find them without merit. The findings of guilty and the sentence was approved and affirmed. h. General Court-Martial Order number 368, dated 30 August 1984, ordered the sentence executed. The portion of the sentence pertaining to confinement served. i. On 17 September 1984, he was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, bad conduct discharge, JJD (court martial, other). His characterization is bad conduct. He completed 4 year, 4 months, and 3 days of active service this period. He had 133 days lost time from 8 May 1984 to 17 September 1984. He had 3 years and 1 day prior active service. 5. By regulation AR 635-200, paragraph 3-11, 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. 6. By regulation AR 630-5 (Leaves and Passes), paragraph 5-4 (Excess. leave awaiting punitive: discharge), states an officer exercising general court-martial (GCM) jurisdiction may direct certain members (either officer, enlisted) to take excess leave involuntarily. 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, the Board found relief was not warranted. 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. The Board fully understood the significance of drinking and driving and killing an innocent person. He made a decision to go out and drink and drive, and then kills someone. He should be responsible for the consequences of his decision. Board members felt compassionate but, based upon seriousness of the misconduct, the Board felt there is insufficient evidence to support a grant. 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 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 (Personnel Separation – Enlisted Personnel) in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states 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. b. Paragraph 3-7b (General discharge) states 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 Condition) is an administrative separation from 'the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances: * when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army * when the reason for separation is based upon one or-more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: use of force or violence to produce serious bodily injury or death, abuse of a position of trust, or disregard by a superior of customary superior-subordinate relationships * acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * deliberate acts or omissions that seriously endanger the health and safety of other persons * an other than honorable conditions discharge will be directed only by one of the following: a commander exercising general court-martial jurisdiction, or a general officer in command who has a judge advocate or legal advisor available to his or her command 3. Army Regulation 630-5 (Leaves and Passes), paragraph 5-4 (Excess leave awaiting punitive: discharge), in effect at the time states an officer exercising general court-martial (GCM) jurisdiction may direct certain members (either officer, enlisted) to take excess leave involuntarily. This applies to a member who has been sentenced by court martial to a dismissal or to receive a punitive discharge when such discharge or dismissal is unsuspended: The member must be pending completion of appellate review. The member may be required to begin leave on the date that the sentence is approved by the GCM authority or at any time after that date. Such leave may continue until final review is completed or may be terminated at any earlier time by the- GCM authority. Confinement must have been served, deferred, or suspended prior to the beginning of leave, when included as part of the approved sentence a. The GCM authority will cause the member to be-notified in writing of the intent to consider the member for involuntary excess leave. The member will be provided a reasonable time, normally 72 hours, in which to present matters supporting a request to continue duty if desired.. 4. 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 based on 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 ABCMR Record of Proceedings (cont) AR20170010178 4 1