ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170010536 APPLICANT REQUESTS: an upgrade to his bad conduct discharge changed 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 214 (Certificate of Release or Discharge from Active Duty), ending 7 April 1993 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 he was told at the time of his discharge it was a minor crime. He could reenter the Army in 6 months. He was charged with illegal use of his liquor and rations card. After he left Korea it was no longer illegal. Now, he can’t use benefits or send his kids to college. 3. The applicant provides a copy of his DD Form 214 showing his service from 20 September 1988 to 7 April 1993 4. A review of his service record shows the following: a. He enlisted in the Regular Army on 20 September 1988. b. He served in Korea from 1990 to 15 May 1991 c. He received nonjudical punishment on 21 November 1990 for breaking restriction after having been restricted by a person authorized to do so. He was reduced to E2 as part of his punishment d. Special Court Martial Order Number 5, dated 22 January 1991, charged the applicant with: * Specification 1: Absent without authority on or about 7 Aug 90 until apprehended on 16 Aug 90 * Specification 2: Absent without authority on or about 5 Sep 90 until 17 Oct 90 * Specification 3 Violation of a lawful general regulation, United States Forces Korea (USFK) Regulation 27-5 dated 24 January 1990 by wrongfully transferring duty-free goods to a person not authorized duty free goods on or about 1 July 1990 * Specification 4 Violation of a lawful general regulation, USFK Regulation 27-5, dated 24 Jan 90, by wrongfully transferring duty-free goods to a person not authorized duty-free goods between on or about 1 Jul 90 and 9 Jul 90. * Specification 5: Violation of a lawful general regulation, USFK Regulation 27-5, dated 24 Jan 90, by wrongfully transferring duty-free goods to a person not authorized duty-free goods on or about 7 Aug 90 * Specification 6 Violation of a lawful general regulation, USFK Regulation 27-5, dated 24 Jan 90, by wrongfully transferring duty-free goods to a person not authorized duty-free goods on or about 9 Aug 90. e The court sentenced him on 6 December 1990, to be discharged from the service with a bad-conduct discharge, to be confined for 4 months, to forfeit $482.00 pay per month for 4 months, and to be reduced to the grade of E1. The sentence was approved by the commander Eight U.S. Army except for that portion of the sentence extending to the bad conduct discharge, was executed. The record of trial was forwarded to The Judge Advocate General of the Army appellate review. f. The Army Personnel Control Facility, Fort Sill OK, approved involuntary excess leave without pay and allowances effective 14 June 1991, while the appellate review was pending under the provisions of Army Regulation (AR) 630-5 (Leaves and Passes), paragraph 5-4. g. On 28 February 1991, the appellate rendered a decision in consideration of the entire record. The findings of guilty and the sentence as approved by the convening authority was correct in law and fact. Accordingly, those findings of guilty and the sentence were approved. General Court-Martial Order number 11, dated 18 May 1992, issued by commander, 2nd Infantry Division, ordered the sentence affirmed and under the provisions of Article 71(c) being complied with, the bad- conduct discharge was duly executed. 4. He was discharged on 7 April 1993. 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, 6 months, and 18 days of active service this period. He had no lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. 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. 7. 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. 8. 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 relief is not warranted. 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 lengthy pattern of misconduct and the lack of post-service character evidence provided by the applicant to show that he has learned and growm from the events leading to his separation, 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010536 4 1