ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170012380 APPLICANT REQUESTS: * an upgrade of his bad conduct discharge to an honorable discharge * a personal appearance before the Board 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) * Certificate of Pardon * three character reference 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: a. He believes his court-martial sentence was too severe. He feels he deserves a reconsideration of his discharge based on his post-service conduct. His growing up without a father led to substance abuse and bad decisions. He has overcome his substance abuse issues and become a good father. b. He grew up in a single-parent dysfunctional family. His father died of alcoholism when he was 6 years of age. The housing project where he lived for the first 19 years of his life was crime and drug infested. He did not handle the peer pressure well and there were no positive male role models in his family. He began using tobacco, marijuana, and alcohol at 13 years of age. Like most kids in the projects, it seemed normal. He was addicted, but he did not know it. Throughout high school, he was under the influence of mind altering substances. He was fortunate enough to graduate from an alternative high school and join the U.S. Army. c. He did not realize the wonderful opportunity he had of serving his country and making a better life for himself. He vaguely remembers what occurred that night in Germany because he was intoxicated. He takes full accountability and responsibility for his actions. He made many wrong choices in his past life. He has been clean and sober now for 20 years and happily married for 8 years. He also possesses a Class A Commercial Driver License. When he is not working, he spends his time in the ministry helping people learn about God and Jesus Christ and how the Bible had helped changed his life. He requests consideration of his worthiness for a discharge upgrade. 3. The applicant provides the following: * DD Form 214, for the period ending on 3 April 1984 * Certificate of Pardon, dated 23 January 2013, granting him a full, complete, absolute, and unconditional pardon * three character reference letters, dated between 15 and 30 April 2017, wherein the individuals attested that the applicant was a good husband, fine father, model citizen, and the events of his past were clearly no longer a part of his character 4. Counsel defers requests and statements to the applicant and provides no additional evidence. 5. Review of the applicant’s military record shows: a. He enlisted in the Regular Army on 15 October 1981. He held military occupational specialty 13B (Cannoneer). He was promoted to pay grade E-3 on 1 July 1982. He served in Germany from 31 January 1982 to on or about 29 June 1983. b. A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 29 April 1983, shows he was pending a general court-martial for robbery and assault. c. On 30 June 1983, court-martial charges were preferred against the applicant for one specification of robbery, by means of force and violence, against another Soldier. The court sentenced him to a reduction to pay grade E-1, a forfeiture of $400.00 pay per month for 11 months, confinement at hard labor for 11 months, and a bad conduct discharge. d. On 5 August 1983, the convening authority approved the sentence, and except for the part of the sentence extending to a bad conduct discharge, and ordered the sentence executed. e. On 26 October 1983, the U.S. Army Court of Military Review, affirmed the findings and sentence. f. On 16 January 1984, he acknowledged receipt of the decision of the U.S. Army Court of Military Review and his right to petition the U.S. Army Court of Military Appeals. His record is void of evidence he petitioned the U.S. Army Court of Criminal Appeals. g. General Court-Martial Order Number 114, dated 3 April 1984, affirmed the sentence and ordered the bad conduct discharge duly executed. h. Accordingly, he was discharged on 3 April 1984, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial. His DD Form 214 shows he completed 1 year, 8 months, and 17 days of active service and 272 days of time lost. The form also shows he was awarded/authorized the: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Army Service Ribbon * Overseas Service Ribbon 6. 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. 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. 8. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 the serious, criminal nature of the misconduct, the Board agreed that the applicant's discharge characterization was warranted. 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 Separations – Enlisted Personnel), in effect at the time, prescribed the policies and procedures pertaining to separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a – an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Paragraph 3-11 – a member would 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. Title 10, U.S. Code, section 1552(f), provides that with respect to courts-martial ABCMR action may extend only to the correction of actions taken by reviewing authorities or action on the sentence of a court-martial for purposes of clemency. 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 (BCMRs/NRs) regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs/NRs 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/NRs 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. 5. 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. //NOTING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012380 4 1