ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180000818 APPLICANT REQUESTS: to have his previous honorable service reflected on his DD Form 214. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored statement 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 his sole purpose in writing to fix his DD Form 214 (Certificate of Release or Discharge from Active Duty). He would like it to show that the honorable discharge he earned in Germany supersedes the bad conduct discharge he received after serving in Korea and completing Airborne School. He is old now and wants his driver’s license to reflect he once served in the greatest Army and country in the world. He has five grandchildren and one day it would be an honor for them to serve their country. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 9 August 1978 and reenlisted on 7 August 1981. b. He served in Germany from 26 April 1980 to 8 August 1981 and Korea from 22 October 1981 to 20 October 1982. c. A letter of appreciation from his commander for the support and assistance he provided during a field exercise. a. d. He accepted nonjudicial punishment (NJP) on 11 February 1983 for being absent without leave (AWOL) on 7 February 1983 to 8 February 1983. e. He was convicted by a special court-martial on 1 January 1983 of one specification of stealing property belonging to another Soldier of a total value of about $400. His sentence included reduction to private/E-1, forfeiture of $200 pay per month for six months, confinement to hard labor for four months, and a bad conduct discharge. f. On 15 April 1983, the convening authority approved the sentence and ordered it executed. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. g. Special Court-Martial Order Number 49, issued by Headquarters, US Army Infantry Center, Fort Benning, GA, shows the sentence had been affirmed and the bad conduct discharge executed. h. He was discharged on 24 June 1983. His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge. It also shows he completed 4 years, 7 months, and 13 days of active service with lost time from 7 February 1983 to 7 February 1983, 8 March 1983 to 25 April 1983, and 5 May 1983 to 16 June 1983. He was awarded or authorized the: * Marksman Qualification Badge (M-16) * Expert Qualification Badge (Hand Grenade) * Army Service Ribbon * NCO Professional Development Ribbon (1) * Overseas Service Ribbon * Parachutist Badge 4. By regulation, an enlisted person 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. 5. 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, the Board determined that relief was warranted. Based upon the applicant having completed his first term of service and that prior honorable service not currently depicted on his DD Form 214, the Board recommended granting relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 780809-810806.” 5/29/2019 X CHAIRPERSON Signed by: 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 Separations), in effect at time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts- martial or actions under Article 15 of the Uniform Code of Military Justice. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 11-2 (Bad Conduct Discharge) states an enlisted person 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. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military 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 UCMJ, 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 UCMJ 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 that Military Department. 1. 4. 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 based on 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.