ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20170015483 APPLICANT REQUESTS: 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, in effect, the Board should find it in the interest of justice to consider his application for him and his family, based on how much he has changed. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 31 May 1979. b. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * on 19 October 1981, for using a Ration Control Plate, belonging to another person, at the Dragon Valley Post Exchange, Camp Casey, Korea * on 23 April 1982, for purchasing goods for illegal transfer or production of income through the sale, barter, or exchange (e.g. black market activities) * 22 September 1982, for wrongfully purchasing in excess of the monthly quantity limitations on certain merchandise; his punishment consisted, in part, a reduction in rank to private first class/E-3 (suspended for 90 days) c. On 5 January1983 [sic], the applicant’s company commander recommended he receive a bar to reenlistment (DA Form 4126-R (Bar to Reenlistment Certificate)) for: * his record of non-judicial punishment * confinement in the Hinesville, GA Jail on 29 July 1983, for possession of a control substance * being picked up in Savannah, GA for the possession of a control substance * speeding (69 miles per hour (MPH) in a 55 MPH speed zone on 15 June 1983 * being absent without leave from 23 August 1983 to 6 December 1983, pending Special (BCD) Court Martial for offense d. The applicant acknowledged receipt of his commander’s recommendation, confirmed that he was counseled/advised of the basis of the action, and did not wish to submit a statement on his behalf. The bar to reenlistment was approved on 6 January 1984. e. On 23 January 1984, the applicant was found guilty by a special court-martial in accordance with Special Court-Martial Order Number 5, dated 17 February 1984, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, GA, of one specification of being AWOL from 23 August 1983 until 8 December 1983. f. The court sentenced him to reduction to private/E-1, forfeiture of $397.00 per month for two months, and a bad conduct discharge. g. On 17 February 1984, the convening authority approved the sentence. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending the completion of appellate review, the applicant remained a member of his command. h. Special Court-Martial Order Number 32, dated 10 October 1984, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, GA, shows the applicant’s sentence affirmed and the bad conduct discharge to be duly executed. i. The applicant was discharged from active duty on 10 October 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 3, in the rank/grade of private/E-1, with a bad conduct discharge. His DD Form 214 shows he completed 5 years and 20 days of creditable active military service with lost time from 29 July 1983 to 2 August 1983 and 23 August to 7 December 1983. He was awarded or authorized Army Service Ribbon and the Expert Marksmanship Qualification Badge with Rifle Bar. 4. 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. 5. The Board should consider the applicant’s submission 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 pattern of misconduct and the seriousness of the offenses, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. 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. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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 states that a Soldier 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. 4. Army Regulations 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. 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 on the basis of 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) AR20170015483 4 1