ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20180001271 APPLICANT REQUESTS: No specific actions, it is presumed, in effect, he desires a correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his characterization of service is honorable or general in lieu of bad conduct (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 (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 makes no specific statement. 3. The applicant served honorably in the Regular Army (RA) from 13 April 1982 through 3 April 1985. He completed 2 years, 11 months, and 21 days of total active military service at the time. He served in Germany from 17 September 1982 to 12 March 1984. 4. On 4 April 1985, he reenlisted in the RA, for 4 years, in pay grade E-4, and for military occupational specialty 94B (Food Service Specialist). On 26 September 1985, he was reassigned to Germany. 5. A letter, from Headquarters, U.S. Military Community, Augsburg, dated 7 January 1986, shows the applicants check cashing privileges were suspended effective 7 January 1986, for 1 year, unless sooner released by the Check Control Office. 6. He accepted nonjudicial punishment on: a. 18 October 1986, for acknowledging and failing to obey a lawful order issued by the first sergeant to clear housing at Augsburg, Germany on 3 October 1986. His punishment consisted of reduction from pay grade E-3 to E-2 (suspended for 60 days), a forfeiture of pay, and extra duty. b. On 6 January 1987, for failing to go to his appointed place of duty at the time prescribed on 4 December 1986. His punishment consisted of a forfeiture of pay and extra duty. 7. Special Court-martial Order Number 25, issued by Headquarters, VII Corps, on 30 April 1987, shows he was convicted by a special court-martial of one specification each of wrongfully using hashish on 15 August 1986 and wrongfully and unlawfully making under oath a false statement on 3 October 1986 8. On 11 February 1987, he was sentenced to a forfeiture of pay, reduction to the rank/grade of private/ E-1, confinement for 4 months, and a BCD. 9. On 30 April 1987, the sentence was approved and except for the part of the sentence extending to a BCD was to be executed. 10. On 26 May 1987, the applicant requested to be placed in a voluntary excess leave status. On 8 June 1987, his request was approved and he was placed in an excess leave status on 22 June 1987. 11. On 31 July 1987, the U.S. Army Court of Military Review (USACMR), filed a motion for reconsideration, the government filed no objection to the motion, the court granted the motion, and it was ordered on this date. The court’s decision, dated 2 July 1987, was withdrawn [it is not available for review]. The action dated 30 April 1987, was to be set aside and the record of trial was to be returned to the Judge Advocate General for a new action by the same or different convening authority. 12. On 3 August 1987, the Clerk of the Court, U.S. Army Judiciary, issued a memorandum to the applicant’s commander advising him of the USACMR’s decision authorizing a new recommendation and action in the subject case. The applicant’s commander was requested to retain the applicant in his command pending action of the convening authority. 13. On 19 October 1987, the USACMR provided a “Notice of Court-Martial Order Correction,” stating “It is ordered that, to reflect the true proceedings at the trial of the above captioned case.” “Special Court-Martial Order Number 38, Headquarters, VII CORPS, APO NEW YORK 09107, date 27 August 1987, is corrected as follows: To reflect the date of the ACTION paragraph as 27 August 1987.” 14. Special Court-martial Order Number 41, issued by the U.S. Army Field Artillery Center, Fort Sill, OK, shows the sentence to a forfeiture of pay, reduction to the rank/grade of private/E-1, confinement for 4 months, and a BCD were affirmed. Article 71(c) having been complied with, the BCD would be executed. 15. Accordingly on 15 August 1988, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * (Net Active Service This Period) 06 00 23 * (Foreign Service) 03 00 00 * (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Sharpshooter Marksmanship Qualification Badge Rifle (M-16), Expert Hand Grenade Marksmanship Qualification Badge, Overseas Service Ribbon, Army Service Ribbon, Army Good Conduct Medal, Army Achievement Medal, and the Noncommissioned Officer Professional Development Ribbon * (Remarks) “Immediate Reenlistment this period: 820413-850403.” * (Separation Authority) AR 635-200, Chapter 3 * Character of Service) BCD * (Narrative Reason for Separation) Court-Martial, Other * (Dates of Lost Time During This Period) shows 11 February through 2 May 1987 16. Order 228-107, Headquarters U.S. Army Field Artillery, Fort Sill, confirms he was reassigned to the U.S. Army Transition Point for transition processing with a discharge date of 15 August 1988. 17. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, the Board is not permitted to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 18. The applicant requests an upgrade of his discharge. In reaching its determination, the Board can consider the applicant's petition and his service record, in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include a period of continuous honorable service, the frequency and nature of his misconduct, the reason for his separation, the sentence of the court-martial and whether to apply clemency. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant did not provide evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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, with the exception of the correction stated in the Administrative Note(s) that follow, 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): A review of the applicant’s record shows his DD Form 214 for the period ending 15 August 1988 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend the DD Form 214 by adding the following entries “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19820413-19850403.” 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. A Soldier will be given a BCD 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. b. 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. c. 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. 3. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. The ABCMR is not empowered to set aside a conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180001271 5 1