IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20170013920 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20150016485 on 21 February 2017. Specifically, he requests his bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for the Review of Discharge from the Armed Forces of the United States), dated Correction of Military Record), received on 12 July 2017 * employment resume and photographs of himself and of different foods FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150016485 on 21 February 2017. 2. The applicant submitted new evidence with this application that was not considered by the Board during its initial consideration. This new evidence warrants consideration at this time. 3. The applicant states: a. All of his life, all he wanted to do was to join the military. He went to basic training at Fort Leonard Wood, Missouri and advanced individual training at Fort Sam Houston, Texas and Fort Schafer, Hawaii. He had a buddy who was with him, until one day his buddy and another Soldier decided to get a female Soldier intoxicated. When she denied their advances, they decided to rape her. When he interceded, he had a knife to defend himself in case the two other Soldiers decided to jump on him. He asked the two Soldier why they "did it" and an altercation broke out. The two other Soldiers decided he was a threat. They decided to attack him and the knife came out. b. He did not mean to hurt his best friend and to this day, he has personal problems because he can't identify with the military. As a Veteran, he has low self-esteem, martial problems, and substance abuse problems. He views his military career as one of the things that has shaped his character and with all that he has been through, it has kept him alive and he is grateful. It has been a tough time not being able to bear the stain of a BCD but he does bear the responsibility. 4. The applicant enlisted in the U.S. Army Reserve on 4 February 1981. He enlisted in the Regular Army on 24 November 1981. 5. The applicant accepted nonjudicial punishment (NJP) on 17 June 1983, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully having possession of a small amount of a habit forming narcotic drug, to wit: marijuana, on or about 11 June 1983. 6. A positive urinalysis was returned on the applicant on 15 September 1983. His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 17 November 1983, which shows he was enrolled in a drug and alcohol program on 16 November 1983, for a period of 120 days. He did not complete the program, as he was placed in pretrial confinement on 18 December 1983. 7. A DA Form 268, dated 19 December 1983, shows that the applicant was placed in pretrial confinement on 18 December 1983, pending trial by court-martial, for alleged aggravated assault. 8. General Court-Martial Order Number 11, issued by Headquarters, Fort Hood, Fort Hood, Texas, on 1 May 1984, shows the applicant was convicted on 1 March 1984, of maiming another Soldier by slashing his neck and left arm with a hunting knife, causing a disabling injury to his arm and seriously disfiguring his neck and arm, on or about 17 December 1983. He was sentenced to confinement at hard labor for one year, a forfeiture of all pay and allowances, reduction to private/E-1, and separation from service with a BCD. 9. The convening authority approved the sentence as adjudged. The record of trial was forwarded to the Judge Advocate General of the Army for review by the U.S. Court of Military Review. Pending completion of appellate review, the applicant was confined in the U.S. Army Correctional Activity, Fort Riley, Kansas, or elsewhere as directed by competent authority. 10. The U.S. Army Court of Military Review affirmed the general court-martial findings and sentence on 1 July 1985. There is no evidence that the applicant petitioned the U.S. Court of Military Appeals for a grant of review. 11. General Court-Martial Order Number 508, issued by the U.S. Army Correctional Activity, Fort Riley, Kansas on 23 September 1985, noted that the approved sentence had been finally affirmed and ordered the sentence to be duly executed. 12. The applicant was discharged on 3 October 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3. His DD Form 214 shows his narrative reason for separation was "as a result of court-martial." He was discharged in the rank/grade of private/E-1 and was issued a BCD. 13. The ABCMR denied the applicant's request for a discharge upgrade on 21 February 2017. 14. As new evidence not previously considered, the applicant provides a copy of his employment resume, listing his places of employment from December 2003 to present, and photographs of the types of food he prepares in his current position as an executive chef. 15. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board did not his employment resume and evidence of civilian skills. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the post-service evidence does not compensate for the misconduct or justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20170013920 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170013920 5 ABCMR Record of Proceedings (cont) AR20170013920 4