ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20170017800 APPLICANT REQUESTS: * upgrade of his bad conduct discharge to either general under honorable conditions or honorable * change his reenlistment (RE) code from "RE-4" to "RE-1" * in effect, reimburse any forfeiture of pay and allowances that exceeded 3 years * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Army Review Boards Agency (ARBA) letter * 15 Certificates reflecting course completions, achievements, recognition for participation, and service * High school diploma * Three Federal Aviation Administration (FAA) Test Results * Marriage certificate * Two letters of support FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002078915 on 12 August 2003. 2. The applicant states he was court-martialed on 7 June 1985. He contends, as an enlisted Soldier, he should have been tried before a jury of his peers; the jury should not have included any officers. He asserts his prior civilian record caused the jury to be prejudiced against him and this led to his conviction. In addition, he claims there was command influence. He notes his original sentence showed the court's punishment included forfeiture of all pay and allowances, but for a period not more than 3 years. a. His present discharge status clearly is not in line with letters of the law, as pertains to the Uniform Code of Military Justice (UCMJ). He argues his discharge was always predicated on prejudice and command influence. He cites his "most piercing" complaints: (1) He entered the U.S. Army on 10 May 1983 as an enlisted Soldier; at his court-martial, his jury consisted of both officers and enlisted personnel. He questions why the court allowed this because he feels only enlisted Soldiers should have been on his jury. (2) He asks the Board to consider the U.S. Court of Military Review's decision to reassess his sentence; he states his sentence was incomplete and the "presumption of regularity" does not apply. He asserts the U.S. Court of Military Review erred when it did not order a new trial. (3) The "Summary of Proceedings" submitted to the U.S. Court of Military Review clearly identified two errors: the promulgation order did not correctly state his conspiracy charge and the trial judge erred by allowing inadmissible hearsay evidence of a prior conviction during pre-sentencing. (4) He contends, in effect, the U.S. Court of Military Review should have voided his sentence and ordered a new trial because the promulgating order's wording caused his original sentence to be misinterpreted. The trial court sentenced him to a bad conduct discharge, confinement for 3 years, and forfeiture of all pay and allowances for 3 years; the U.S. Court of Military Review's Memorandum Opinion stated his forfeiture incorrectly when it listed it as "forfeiture of all pay and allowances" without adding the 3-year term. b. Although the gravity of his charges has not been lost on him, he has suffered greatly due to his court-martial conviction; he is 55 years old and still carries the vestiges of this conviction. He maintains his chain of command unfairly used him as an example because he was the only one placed in pre-trial confinement; he was also the only one sentenced to the U.S. Disciplinary Barracks at Fort Leavenworth, KS. They did not allow him to testify at the trials of his co-accused; he contends this caused them to receive lighter sentences (one of his co-accused received "no time at all"). He attributes this outcome to command influence; he was a well-known Soldier who had participated in numerous sporting events. The government granted his co-accused immunity and they testified at his trial, despite the fact their charges were more serious. He asserts the command influence that occurred led to "sentence inappropriateness." c. The applicant argues the command influence caused his discharge to be improper; in addition to the abuses of authority committed by his chain of command, they did not follow the proper rules of evidence (the applicant cites the Military Rules of Evidence). He notes the U.S. Court of Military Review concluded there was "significant danger of prejudice"; the applicant asserts this was due to the command "stacking charges" as a way magnifying what he had done. He acknowledges the seriousness of the charges, but maintains his chain of command treated him unfairly throughout the process, and he still suffers from a mistake he made 35 years ago. d. A review of his military record shows he was generally a good Soldier who received promotions on time. He was a private first class at the time of his court- martial, but his superior officer showed him orders for promotion to specialist four, which would have taken effect, assuming the court acquitted him. He asserted there were additional documents in his service record showing the recognition he received, but they are, somehow, no longer there. He describes some of the recognition given, to include the award of the Army Achievement Medal; his leadership prevented him from being presented this award due to his trial. e. He was not a drinker before joining the Army; he had lettered in three sports and had college offers, but felt he was not mature enough to handle college. He enlisted in the Army with the intent of entering college after his discharge. The Army sent him to Germany, where he was introduced to many forms of drinking. While he thought nothing of this at first, he realizes now he was making one of the most harmful decisions of his life because alcoholism runs in his family. He believes alcohol played a role in his decision-making and impaired his judgment; he contends alcohol also dictated the decisions of his co-accused. After returning to civilian life, he completed the Salvation Army's 1-year alcohol treatment program, through which he has found sobriety. f. He would like the Board to know, although he was a trained Army Soldier in his youth, immaturity was the root cause of his pain and suffering. His court-martial has brought even more pain than he could have imagined. He is 55 years old; he has gone on to graduate from college and is an FAA certified aircraft mechanic. Despite this, he is unable to get the best employment due to his discharge. When he enlisted, the Army granted him a moral standards waiver, and he contends his pre-service problems contributed and impaired his ability to make good decisions. g. Since his discharge, he has remained free from criminal activity and has become a productive citizen. He is a married grandfather, with a son and a deceased child; his family would benefit from his discharge upgrade in that they would be able to receive health and other benefits. He notes, in effect, while he appreciates that the U.S. Court of Military Review found enough evidence to direct the reassessment of his sentence, he notes was already due for parole when they announced the court's decision. He had already completed 18 months of his sentence and the reassessment became an embarrassment. He asserts the U.S. Court of Military Review should have rendered his punitive discharge to be improper instead. 3. The applicant provides numerous certificates, which affirm his post-service achievements, a letter stating the applicant graduated from an adult rehabilitation center, and a letter of support that describes him as a man with great possibilities. 4. The applicant's service records show: a. He enlisted in the Regular Army on 10 May 1983. Following initial training, orders assigned him to Germany; he arrived on or about 6 October 1983. b. On 8 December 1984, the applicant and three other soldiers, all of whom had been drinking, conspired to rob, and subsequently did rob, a hotel in Stuttgart, Germany. After the robbery, they divided the money among themselves. c. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 3 January 1985 for disrespectful language toward, and disobeying the law order of a superior noncommissioned officer. d. On 5 June 1985, contrary to the applicant's pleas, a general court-martial convicted the applicant of conspiring to steal $100, and of robbing a person's cash box, which contained $100. (1) The members of the court sentenced the applicant to confinement for 3 years, forfeiture of all pay and allowances for 3 years, and a bad conduct discharge. Effective 5 June 1985, the applicant was placed in confinement. (2) On 7 August 1985, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence's execution. The convening authority also gave the applicant administrative credit for his 91 days of pre- trial confinement. f. On 23 May 1986, the U.S. Army Court of Military Review issued its memorandum opinion. (1) The opinion stated the applicant was convicted of robbery and conspiracy to commit larceny; a general court-martial, composed of officer and enlisted members, sentenced the applicant to a bad conduct discharge, 3 years confinement, and forfeiture of all pay and allowances. (2) The applicant contended the military judge erred by admitting inadmissible hearsay during presentencing; the military judge allowed the trial counsel to offer a Department of Defense Investigative Service file that showed the applicant had a prior civilian conviction for armed robbery. The U.S. Army Court of Military Review concluded such an admission caused a significant danger of prejudice. Their solution was to reassess the sentence by reducing the applicant's term of confinement from 3 years to 24 months. The court affirmed findings of guilt as well as the remainder of the applicant's sentence. g. On 1 August 1986, the Court of Military Appeals elected not to review of the case, and, effective 18 September 1986, orders placed the applicant on indefinite excess leave (the applicant was in post-trial confinement from 5 June 1985 to 17 September 1986, a period of 1 year, 3 months, and 13 days). h. On 19 September 1986, orders directed the execution of his bad conduct discharge; the applicant was separated with a bad conduct discharge on 10 October 1986. His DD Form 214 showed he completed 1 year, 10 months, and 19 days of net active service, with lost time from 6 March 1985 to 9 May 1986, and from 10 May 1986 to 17 September 1986 (the latter period occurring after normal expiration term of service). He was awarded or authorized the Army Service Ribbon and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). His separation code (SPD) was "JJD" and his RE code was "RE-4." i. On 25 February 1987, he petitioned the Board to upgrade his discharge to general under honorable conditions. He argued his crime was alcohol-related and he had enrolled in both alcoholics and narcotics anonymous. He felt his sentence was unfair and provided a self-authored statement, in which he described his active duty accomplishments, as well as explaining how alcohol had affected his conduct and contributed to his misconduct. On 22 June 1988, the Board denied his request. j. On 29 March 2000, the applicant applied again to the Board for an upgrade of his discharge; he requested the Board upgrade his character of service to honorable and he added a request to revise his RE code to "RE-1." His current arguments essentially mirrored those submitted with this request. On 12 August 2003, the Board denied his requests. 5. The applicant has submitted multiple requests; in support of those requests, he provides certificates reflecting post-service achievements as well as letters of support. Regarding character of service, Title 10 (Armed Forces), U.S. Code restricts the Board to providing clemency with regard to sentencing, or correcting records to show those actions taken by reviewing authorities under the UCMJ. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 6. Regarding his additional requests: * RE Code – RE codes are determined based on the SPD; Soldiers who are separated due to a bad conduct discharge, by regulation, have the SPD of "JJD" entered on their DD Forms 214; regulatory guidance indicates the RE codes associated with this SPD can be either "RE-3" or "RE-4" * in effect, reimburse forfeiture of pay and allowances exceeding 3 years – the U.S. Army Court of Military Review reduced the applicant's confinement to 24 months, but he actually served 1 year, 3 months, and 13 days of confinement; he was discharged 23 days later * Personal appearance – the ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board; the Director or the ABCMR may grant formal hearings whenever justice requires BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and character witness statements 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. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 (Armed Forces), U.S. Code, section 1552 (Correction of Military Records: Claims Incident Thereto), states Boards for the Correction of Military Records may only correct records to reflect actions taken by reviewing authorities under the UCMJ or to apply clemency with regard to sentencing. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was a separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record were outweighed by subsequent honest and faithful service over a greater period. Patterns of behavior, not isolated instances, were to govern determinations for character of service. b. Paragraph 3-7b (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate)). A Soldier 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. 3. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures of the preparation of the DD Form 214. It referred to AR 635-5-1 (SPD Codes) for guidance as to which SPD to enter; AR 601-210 (Regular Army and Army Reserve Enlistment Program) listed reenlistment eligibility codes. 4. AR 635-5-1, in effect at the time, listed the specific authorities and reasons for separation for all components of the Army on active duty. The SPD code of "JJD" was used for Soldiers separated in accordance with AR 635-200; the reason was to be reflected as, "as a result of court-martial, other." 5. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code of "JJD" had corresponding RE codes of either 3 or 4. 6. AR 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve. Table 3-6 (RE Codes) included a list of the Regular Army RE codes: * RE-1 applied to Soldiers completing their initial term of active service who were fully qualified to reenter the U.S. Army * RE-3 applied to Soldiers who were not fully qualified for reentry, but the disqualification was waivable * RE-4 meant the Soldier was ineligible for reenlistment 7. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. 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) AR20170017800 8 1