ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180000954 APPLICANT REQUESTS: an upgrade to his bad conduct discharge characterization and an appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Records 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 he would like to respectfully request his bad conduct discharge be upgraded to general, due to his chronic medical conditions. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 March 1976. b. On 6 May 1976, he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order from his superior non- commissioned officer, to go to his place of training. His punishment included forfeiture of $84.00, 14 days of extra duty and restriction to the company area. c. On 28 July 1976, for the same incident mentioned above, he was convicted by a special court martial of 1 count of disobeying a lawful order to resume training. The court sentenced him to forfeiture of $240.00 pay and allowances for 4 months, confinement at hard labor for 4 months, and a bad-conduct discharge. d. On 2 November 1976, he completed his sentence to confinement and put on excess leave pending the completion of the appellate review. e. On 13 September 1977, 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 United States Army Court of Military Review for appellate review. f. On 8 March 1977, the appellate (United States Army Court of Criminal Appeals) affirmed the findings of guilty and the sentence was approved by the convening authority correct in law and fact. g. Special Court-Martial Order 155, dated 13 May 1977 affirmed the sentence and ordered the bad conduct discharge be executed. h. The applicant was discharged on 27 July 1977. His DD Form 214 shows he was discharged in the rank/grade of private/E-1, as a result of his special court-martial conviction, in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, dishonorable and bad conduct discharge. i. He completed 9 months, and 22 days of active military service with lost time from 6 May 1976 to 8 July 1976 and 28 July 1976 to 1 November 1976. 4. By regulation, 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. 5. By Army Regulations (AR) 635-200, (Personnel Separations - Enlisted Personnel) a member 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. 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 short term of service and a lack of character evidence submitted by the applicant to show he has learned and grown from the events which led to his discharge, 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 (AR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states 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. 3. Army Regulation 635-200, in effect at the time, sets for the basic authority for the separation of enlisted personnel a. Paragraph 1-13a Honorable states that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b General, states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments, but not for serious infractions. c. Chapter 11-2, of that regulation covers Bad Conduct Discharges and states that a member 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. 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. ABCMR Record of Proceedings (cont) AR20180000954 4 1