ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170015707 APPLICANT REQUESTS: the characterization of service of her deceased husband, a former service member, be changed from bad conduct discharge to general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * 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 provides: a. The FSM death certificate as proof of next of kin. b. The letter that the applicant wrote to the Department of Veterans Affairs in response to the claim denials for death benefits for the FSM. * she stated that the FSM was the middle of 11 children and he was her best friend and was always there for her * their childhood was hard due to their father being an alcoholic and would become violent at times * the FSM helped her when she was sexually abused by a family member and was able to assist her to get away from the situation * after the FSM enlisted in the Army, he still supported her * the applicant and her family had to care for the FSM after he was diagnosed with paranoia schizophrenia and was admitted to a behavioral health institution * on 21 April 2017 the FSM was in the hospital when he was diagnosed with stage 4 lung cancer, the treatments made him very sick * his doctor suggested that the FSM live with the applicant and he did, they were able to receive at home care * the applicant lost her job caring for the FSM because of the lack of understanding and compassion of her employer 3. A review of the FSM’s service records shows: a. He enlisted in the Regular Army on 9 October 1980. b. He accepted nonjudicial punishment on 29 May 1981 for wrongfully possessing marijuana. c. On 12 August 1982, the FSM was convicted by a special court-martial of: * one specification of behaved disrespectfully to a commissioned officer * one specifications of willfully disobeyed a lawful order of a commissioned officer * four specifications of willfully disobeyed a lawful order of a noncommissioned officer * one specification of after been duly placed under arrest in quarters did break said arrest * three specifications of wrongfully assaulted another enlisted Soldier d. The court sentenced him to confinement at hard labor for 6 months, forfeiture of $300 per month for 6 months, reduction to the lowest enlisted grade private (PVT)/E-1, and a bad conduct discharge. e. On 28 September 1982, the convening authority approved the sentence and except for the bad conduct discharge, ordered the sentence executed. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. f. On 23 February 1983, the appellate review stated the FSM’s contumelious disrespect was conduct separate and apart from that charged and proven in the specification alleging disobedience. Neither offense was necessarily included in the other. The findings of guilty and the sentence was affirmed. g. On 19 March 1983, the FSM was notified of the U.S. Army Court of Military Review findings and advised that he had 60 days from date of notification to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law. h. Special Court-Martial Order Number 127, dated 27 June 1983, stated the sentence had been affirmed and having been complied with the sentence will be duly executed. That portion of the sentence pertaining to confinement had been served. i. The FSM was discharged from active duty on 23 August 1983 with a bad conduct characterization of service with the grade of PVT/E-1. His DD Form 214 showed that he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separation) with a bad conduct discharge. He completed 2 years, 2 months, and 29 days of active service with lost time for the period of 4 June 1982 to 19 January 1983. It also showed that he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 4. The applicant applied to the Army Discharge Review Board and on 31 October 1988, his application for an upgrade of his discharge was denied. 5. By regulation 635-200 (Personnel Separations – Enlisted Personnel), 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. 6. 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 pattern of misconduct which led to the applicant’s separation involving violent behavior towards others, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 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 Personnel), in effect at the time, provides for the separation of enlisted personnel: a. Paragraph 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has 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 (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other Than Honorable Conditions) states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service. d. Paragraph 3-10, section IV (Dishonorable Discharge) states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. d. Chapter 3 section IV, paragraph 3-11 (Bad Conduct Discharge), of that regulation 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. Dishonorable and bad conduct discharges result in expulsion for the Army. Any sentence to confinement has been deferred or served. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any 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 Uniform Code of Military Justice, 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 Uniform Code of Military Justice 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 the Military Department. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170015707 5 1