BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170015133 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 August 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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, in effect, he was 18 years old, had a bad culture shock, and was unable to adjust to military life. 3. The applicant enlisted in the Regular Army on 10 February 1983. 4. The applicant's service records contain the following DA Forms 4187 (Personnel Action) that shows his duty status was changed as follows: * from present for duty (PDY) to absent without leave (AWOL), on or about 28 November 1983 * from AWOL to PDY, on or about 1 December 1983 (corrected copy) * from PDY to AWOL, on or about 8 September 1984 * from AWOL to confined by military authorities (CMA), on or about 27 September 1984 5. Before a special court-martial on or about 16 October 1984, at Fort, Campbell, KY, the applicant was convicted of wrongfully appropriating property in the value of about $557, between 21 June 1984 and 10 August 1984; and of being AWOL from his unit, from on or about 7 September 1984 until on or about 27 September 1984. a. His sentenced included confinement for two months; reduction to the rank/grade of private/E-1; and separation from service with a BCD. b. The sentence was approved on 21 November 1984 and ordered dully executed except for the part of the sentence extending to a bad-conduct discharge. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. The applicant was placed on excess leave without pay and allowances, effective 26 November 1984, pending completion of the appellate review. 7. The U.S. Army Court of Military Review affirmed the court-martial findings and sentence on 29 January 1985. 8. Special Court-Martial Order Number, issued by the Headquarters, 101st Airborne Division (Air Assault) and on 23 July 1985, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 9. The applicant was discharged on 22 August 1985, pursuant to his court-martial sentence. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, section IV, as the results of a court- martial sentence. His service was characterized as bad conduct. His DD Form 214 further shows in: * Item 12c (Record of Service – Net Active Service This Period), he was credited with completing 2 years, 8 months, and 25 days of net active service this period * Item 18 (Remarks), includes the entry "Excess leave. Creditable for all purposes except pay and allowance. 276 days 841115-841120/841126-850822" * Item 29 (Dates of Times Lost During this Period), the entry "TIMES LOST UNDER TITLE 10 USC 972: 841115-841120, 831128-831130, 840908-841115" 10. 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. 11. The Board should consider the applicant's request 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 frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to 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 was 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. 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 set 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, Section IV of the version in effect at the time provided that a Soldier would be given a BCD 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. 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. 4. 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) AR20170015133 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170015133 5 ABCMR Record of Proceedings (cont) AR20170015133 4