ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20170019112 APPLICANT REQUESTS: In effect, an upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 September 2017 * Standard Form 180 (Request Pertaining to Military Records), dated 22 September 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, under better circumstances in his home life and environment, he could have and would have made better choices during his service. His parents were going through a very rough divorce and he and his siblings received the blunt of their actions. He believes his parents actions had a strong impact on his acting out and being involved in doing things he should have never been doing. It was his first time away from home, he was young, and he is now asking for forgiveness as he is very saddened by, and sorry for, his actions while in the Army. 3. The applicant enlisted in the Regular Army at age 18 on 6 June 1978. 4. Before a general court-martial on 9 May 1979 at Fort Stewart, Georgia, the applicant was convicted, pursuant to his pleas, of the following offenses against another Soldier: * stealing a set of automobile keys of some value * knowingly and without authority entering an automobile * stealing an automobile of a value of about $1,475.00, a combination stereo and tape player of a value of about $40.00, a travel bag of a value of about $27.00, a sport Jacket, of some value, and a pair of boots, of a value of about $15.00 * absenting himself without leave (AWOL) from on or about 19 December 1978 until on or about 12 February 1979 5. The applicant was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, and separation from service with a BCD. The convening authority approved only so much of the sentence as provided for confinement at hard labor for ten months, forfeiture of $225.00 pay per month for ten months, and separation from service with a BCD. The forfeiture applied to pay and allowances due on and after the date of the action. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and pending completion of appellate review, the applicant was ordered to be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS or elsewhere as competent authority may direct. 6. General Court-Martial Order Number 5, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC on 18 March 1980, noted the sentence as approved by the convening authority had been affirmed. The provisions of Article 71(c) having been complied with, the sentence was ordered to be executed. 7. The applicant was discharged on 28 March 1980, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of a general court-martial conviction. He completed 1 year and 28 days of net active service this period and had approximately 107 days of lost time due to AWOL. His service was characterized as under other than honorable conditions (UOTHC). 8. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 9. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 10. The Board should consider the applicant's statement 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. Although the applicant was young at the time of the offenses, the Board concluded that based upon the severity of the misconduct, the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request. 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 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. Chapter 11 of the regulation in effect at the time stated that a member 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. 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. ABCMR Record of Proceedings (cont) AR20170019112 3 1