ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170014053 APPLICANT REQUESTS: an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 he did his time and deserves his benefits. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 8 May 1980. b. He served in Germany from 27 September 1980 to 28 April 1982. c. He accepted nonjudicial punishment (NJP) on 5 August 1981 for failing to go to his appointed place of duty on 24 June 1981, 25 June 1981, and 29 June 1981. d. He was convicted by a special court-martial on 19 November 1982 for stealing. His sentence included reduction to private/E-1, forfeiture of $360 pay per month for four months, confinement to hard labor for three months, and a bad conduct discharge. e. On 20 January 1983, the convening authority approved the sentence and except for the bad conduct discharge, ordered it executed. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. f. On 11 May 1983, the U.S. Army Court of Military review affirmed the finding of guilty and the sentence. a. g. Special Court-Martial Order Number 115, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, shows the sentence had been affirmed and the bad conduct discharge executed. h. He accepted NJP on 21 November 1983 for being absent without leave from 4 February 1983 to 3 November 1983. i. He was discharged on 21 December 1983. His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows in he was discharge din accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge. It also shows he completed 2 years, 8 months, and 9 days of active service with lost time from 3 June 1981 to 4 June 1981, 29 November 1982 to 2 February 1982, and 4 February 1983 to 7 May 1983. He was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 4. By regulation, an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 5. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the serious misconduct which resulted in the discharge, the Board found no error or injustice which would warrant making a change to the characterization of service. Additionally, the Board found no character evidence presented by the applicant to show that he has learned and grown from the events resulting in the discharge. For those reasons, the Board recommended denying the applicant’s request for relief. 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. 5/10/2019 X CHAIRPERSON Signed by: 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 635-200 (Personnel Separations Enlisted Separations), in effect at time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts- martial or actions under Article 15 of the Uniform Code of Military Justice. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 11-2 (Bad Conduct Discharge) states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 1. 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 for the revised reason or had the upgraded service characterization.