ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20170012521


APPLICANT REQUESTS: in effect, an upgrade of his bad conduct discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 that he is requesting a discharge upgrade.  He asks the Board to please accept the enclosed personal statement and the statements of other friends, family, and community officials.  The applicant believes that due to his situation at the time of the event, it should be considered a stressful situation due to family matters.  He respectfully requests a discharge upgrade from “Bad Conduct” to “Honorable.”  Prior to the event in question, he was an ideal Soldier leading to the massive injury that his son had gone through.  He further requests that the Board please accept all enclosed information during the decision process of his claim.

3.  The applicant provides a self-authored statement that states that he was an upright citizen from the time he was discharged to the present.  He has worked in various positions from entry level to supervisory and has not had any criminal offenses.  He has raised 5 children ranging from the ages of 16 to 31.  He had a good career in the Army and received Good Conduct Medals (GCM), Army Commendation Medal (ARCOM) and a few other medals.  He enjoyed his time in the Army and was a good Soldier.  Things changed in the summer of 1988 while he was station at Fort McPherson, Georgia.  There was a storm one day and his oldest son was outside playing and he had just returned home from Fort Gordon after receiving shoulder surgery after playing baseball.  His wife and son were outside playing, when in the front yard, the power line fell on top of his son causing extensive damage to him.  He was rushed to Grady Memorial Hospital in Atlanta Georgia.  They were given the option to fly back to their home in Cleveland, Ohio to get family support.  While in the Metro Hospital, the decision was made to take both of his son’s arms and other surgeries.  He was temporarily stationed at Cleveland Military Entrance Processing Station (MEPS) while his son was going through the surgeries and health issues.  Family issues became paramount, the blaming, place to live, all of these things had begun to snowball out of control.  It caused problems with his wife and her health.  This is when he had a momentary lack of judgment and looked for a way to escape all of this and that indiscretion cost him and his career.  He is sorry and that it even happened and has not been back on that path since.  

4.  A review of the applicant’s service record shows the following:

	a.  He enlisted in the Regular Army on 18 February 1982.

	b.  He served in Korea from 10 October 1985 to 17 September 1986.  

	c.  He accepted nonjudicial punishment on 3 April 1991 for wrongful use of a controlled substance to wit: cocaine.  

	d.  On 3 April 1991, the applicant’s intermediate commander advised him that a request for administrative discharge, under the provisions of chapter 14, Army Regulation (AR) 635-200 for misconduct would be initiated. 

	e.  After an exhaustive search, complete circumstances surrounding the applicant’s acknowledgement of his discharge or documentation concerning his elections of rights are unavailable for the Board to review. 

	f.  An undated self-authored letter was submitted by the applicant that states, in effect, he was on compassionate reassignment and was sent there for medical treatment of his son and for strong family support.  His son was electrocuted and severely burned over 80% of his body and as a result of these burns, he lost both of his arms.  This happened at Fort McPherson, Georgia in June of 1988.  He and his family were moved to Cleveland to receive the burn care he needed.  Since then, he has received 14 surgeries.  During the time since the accident, things have slowly deteriorated as far as his marriage and family support and his unit support is not their either.  Since the accident, he has had two more children and things are tight on his specialist/E-4 pay.  Problems started to arises with that plus his son’s disability.  He further stated that it is hard to see his child that was born perfect and normal to suddenly have to struggle to accomplish things that we take for granted like eating, using the restroom, and riding a bike etc.  Things that kids do all the time growing up, to having nightmares about watching your child getting electrocuted, trying to place the blame on his wife to the point that they are separating from each other.  Taking care of three babies with very little help from family has been very stressful to the point of almost no return.  It took him 2 years to look for an outlet and he felt he could not turn to his command because of lack of interest in his personal problems.  A mistake is what he made and he realizes the severity of that mistake.  He is a good Soldier and hates to shame himself, but he can still be a great asset as he has been for the last 9 years.  

	g.  On 12 September 1991, a post-trial recommendation of the staff judge advocate was submitted and it states that he recommends that only so much of the sentence as provides for reduction to private/E-1, to be confined for 3 months, and to be discharged from the service with a bad conduct discharge be approved.  The applicant was found guilty of 3 specification of wrongful use of a controlled substance.

	h.  On 23 September 1991, matters submitted pursuant to rules for courts-martial was submitted by Trial Defense Services.  The memorandum states a recommendation that the adjudged sentence not be approved, set aside the findings and dismiss the charges.  The military judge erroneously denied a defense motion to dismiss these charges.  Evidence indicates that the applicant’s commander, improperly influenced witnesses causing them to refuse to testify for the applicant’s trial.  After 3 noncommissioned officers made statements on behalf of the applicant at an article 15 hearing, lieutenant colonel (LTC) X___ improperly lectured them, saying that superiors in their chain of command might hold the fact that they spoke up for the applicant against this.  This warning had a chilling effect on these Soldiers.  LTC X___ successful command influence made it impossible to fully and fairly present mitigation evidence and denied the applicant a fair trial.  If the findings are approved, trial counsel requests that any confinement is suspended in excess of 45 days.  LTC X___ refused to send the applicant for any rehabilitative counseling other than an initial interview.  His inelastic attitude about rehabilitation (drug use equals elimination) directly contradicts the very reason for alcohol drug abuse prevention control program (ADAPCP).

	i.  On 1 October 1991, the convening authority states that the applicant’s sentencing only so much of the sentence as provides for reduction to the grade of private/E-1, confinement for 3 months and to be discharged from the service with a bad conduct discharge is approved and, except for the part of the sentence extending to bad-conduct discharge, will be executed.  

	j.  On 1 October 1991, the staff advocate responded to the trial defense services.  The memorandum states the judge correctly ruled upon this issue at trial and no corrective action is necessary.  The military judge ruled that the accused’s commander, LTC X___ did hold a meeting with his subordinates (some of whom were potential witnesses for the defense) which created the appearance of having a chilling effect on the trial.  However, the judge went on to find that LTC X___’s actions did not rise to a level of command influence which denied the applicant a fair trial.  At trial, the applicant’s commander, LTC X___ testified that after he received notice of the, first cocaine positive, he referred the applicant to the ADAPCP program at Fort Knox for an
evaluation.  They found no evidence of an alcohol or drug problem, but still recommended the applicant’s participation in a Track I treatment program.  LTC X__: son decided not to put the accused in Track I, because he initiated mandatory separation action IAW AR 635-200, para 14-12.

	k.  Special Court-Martial Order 33, dated 19 February 1993, sentences the applicant to a bad conduct discharge, confinement for 3 months, and reduction to the private/E-1, adjudged on 20 August 1991, as promulgated in Special Court-Martial Order 2.  The portion of the sentence pertaining to confinement has been served.

	l.  He was discharged from active duty on 16 March 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that he was discharged under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 3) with a bad conduct discharge as a result of court-martial.  It shows that he completed 10 years, 10 months and 18 days of active duty service with 73 days of lost time.  

5.  The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation.

6.  By regulation, AR 635-200, chapter 3-11 of this regulation states 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

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 relief is not warranted.  The applicant’s contentions and letters of support were carefully considered.  The applicant contends his family concerns mitigated the misconduct.  He was remorseful with his application.  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.  One Board member voted to grant some relief based on his continuous period of honorable service prior to being caught with cocaine four times.  Based on his multiple drug offenses, which occurred approximately three years after his raised family concerns/problems, as well as his failure to accept responsibility for the events leading to his separation, the majority of 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

:	x	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

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 Separations) in effect at the time, sets forth the basic authority 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.  Chapter 3-11 of this regulation states 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012521
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