ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 October 2019 DOCKET NUMBER: AR20170013899 APPLICANT REQUESTS: an upgrade to his bad conduct discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) * DD Form 214 (Certificate of Release or Discharge from Active Duty ) * Two self-authored Statement * Basic Non Commissioned Officer Course Diploma * Copy of his Army National Guard Discharge Certificate 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 states he feels he was misjudged in the case, which led to his discharge. The lawyer failed to present his case and his punishment should have been being fined, reduction of two pay grades and forfeiture of pay and allowances for two months. The Board should look at the way things went. He paid his debt and served time in the stockade and still had to perform. 3. The applicant provides a detailed self-authored statement, which is attached describing the incident and his military and personal experiences. 4. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 9 November 1978 and was honorably discharged, according to his NGB Form 22 (Report of Separation and Record of Service), on 8 July 1980. b. He enlisted in the Regular Army on 18 June 1980. c. On 6 July 1982, he accepted non-judicial punishment, under Article 15, Uniform Code of Military Justice, UCMJ, for departing his unit in an absent without leave (AWOL) status and did not return to military control until 19 July 1982. His punishment included a reduction in rank to Private/E-1. d. On 17 December 1982, he was convicted by Special Court-Martial Order Number 6 for two specifications of stealing $130.00, the property of the Rapides Bank and Trust Company on 4 October 1982 and a personal check from a member of the United States Army on 7 April 1983, and one specification of falsely making, with an intent to defraud, in its entirety, a certain check The court sentenced him to a reduction to Private/E-1, forfeit of $380.00 per month for 3 months, 3 months hard labor and issuance of a bad conduct discharge. e. On 20 January 1983, the convening authority approved the sentence and except for the bad conduct discharge, ordered the sentence executed. f. On 3 May 1983, the appellate (United States Army Court of Military Review) affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact. g. Special Court-Martial Order Number 63, dated 15 November 1983, shows, in pertinent part, his sentence was finally affirmed and the bad conduct discharged was ordered duly executed. h. The applicant was discharged on 22 November 1983. Her DD Form 214 shows he was discharged in the rank/grade of Private/E-1, as a result of his special court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, with a bad conduct discharge. He completed 3 years, 3 months and 27 days of net active service this period and 1 year, 11 months and 7 days prior service with lost time from 6 July 1982 to 18 July 1982 and 10 January 1983 to 3 February 1983. 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, 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. See paragraphs 14b, 98 and 127, MCM, 1969 (Rev. Ed.). 7. The Board should 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 the offense of a criminal nature, 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, in effect at the time, sets for the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) states that 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 1-13b (General) states that 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. A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 3-11(Bad Conduct Discharge), 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. See paragraphs 14b, 98 and 127, MCM, 1969 (Rev. Ed.). 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 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) AR20170013899 4 1