ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20180003314 APPLICANT REQUESTS: * upgrade of his bad conduct discharge to general, under honorable conditions or honorable * change his narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 was a hard working Soldier and was at the top of his training. He moved up through the ranks very fast and became a specialist in no time. He completed his first enlistment and signed up for another term. His discharge was a lack of judgement on his behalf. The other Soldier in his court-martial asked him to help him move some of his belongings because he was going on leave. This costed him his career and he is really sorry for his actions. He is a member of his church, donates to charities, helps in his neighborhood, and gives to his local fire department. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 27 September 1977. He reenlisted on 30 March 1981 for 3 years. b. The complete facts and circumstances surrounding his discharge are not available for review with this case, however, his service record contains: (1) Special Court Martial (SCM) order number 69 shows he was convicted by a SCM for stealing one Magnavox color-television, one stereo receiver, one Sharp cassette deck, and two Lyric speakers on 8 February 1982. The court sentenced him to a bad conduct discharge, forfeiture of $100 per month for 3 months, and reduction to private/E-1. The convening authority approved the sentence on 14 June 1982. The record of trial was forwarded for review by a Court of Military Review. (2) The U.S. Army Court of Military Review affirmed the findings of guilty on 18 August 1982. (3) SCM Order Number 2, dated 11 January 1983 affirmed and ordered the sentence duly executed. c. On 1 January 1983, he was discharged from active duty. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separation) with a bad conduct characterization of service. It also shows he completed 3 years, 1 month, and 18 days of active service this period and shows in: * item 25 (Separation Authority) - Chapter 11, AR 635-200 * item 26 (Separation Code) - JJD * item 28 (Narrative Reason for Separation) - As a result of court-martial 4. By regulation, state what the governing regulation says about issuing a bad conduct discharge to a Soldier, but only after the sentence has been through appellate review and ordered duly executed. 5. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 6. For item 28 (Narrative Reason for Separation), enter the regulatory or other authority cited in the directives authorizing the separation as outlined in AR 635-5 (Separation Documents). The separation code “JJD” will be used for separation of enlisted personnel for “as a result of court-martial, other” as outlined in AR 635-5-1 (Separation Program Designator Codes). 7. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the multiple offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization and reason for separation was warranted as a result of the misconduct. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 27 September 1977 until 29 March 1981.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (1), an honorable discharge is a separation with honor. 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 (1), 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. Paragraph 3-7c (1), a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. d. Paragraph 11-2 (Bad Conduct Discharge ), 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. 3. Army Regulation 635-5 (Separation Documents) ), in effect at the time, prescribes the policies and procedures for the preparing and distribution of the DD Form 214 (Report of Separation from Active Duty). It states for item 28, enter the reason for separation (shown in AR 635-5-1 (Separation Program Designator (SPD))) based on the regulatory or statutory authority. 4. Army Regulation 635-5-1(SPD Codes), in effect at the time, prescribes the SPD codes and authorities and reasons for separation from active duty. It states, in pertinent part, the regulatory authority of AR 635-200, with the narrative reason of “as a result of court-martial, other” will have an SPD of JJD. 5. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 6. 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 Uniform Code of Military Justice, 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 Uniform Code of Military Justice 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003314 4 1