IN THE CASE OF:  BOARD DATE:  6 April 2020 DOCKET NUMBER:  AR20180003473 


APPLICANT REQUESTS:  His bad conduct discharge (BCD) be upgraded to an under honorable condition (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 7 March 2018, with self-authored statement

.DD Forms 293, dated 13 November 2014, 2 September 2015 and 6 March 2017

.self-authored letter to the Department of Veterans Affairs (VA)

.51 character reference letters



FACTS: 











1.he 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, in effect, he has made three prior attempts, on 13 November 2014, 2 September 2015 and 6 March 2017, to upgrade his discharge.  In his last attempt, Mr. R Jr. sent a personal letter to the VA and he was told that he was using the wrong address; the letters should have been sent to Arlington, VA.  He greatly appreciates any assistance.3.The applicant enlisted in the Regular Army on 26 June 1979.4.The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates:•on 20 August 1981, for without authority, failing to go at the time prescribed to his appointed place of duty•on 5 January 1982, for offering violence against a commissioned officer by pushing him in the chest and being disorderly at the station 



5.Before a general court-martial on 16 July 1982, at Fort Lewis, WA, the applicant wasfound guilty of two specifications of assault committed against fellow Soldiers.  Hissentence included reduction to the rank/grade of private/E-1, forfeiture of all pay andallowances, confinement at hard labor for 12 months, and separation from service witha BCD.  The sentence was approved on 16 September 1982 and the record of trial wasforwarded to the U.S. Army Court of Military Review for appellate review.  The relevantgeneral court martial order is attached; however, it is difficult to read.

6.Special Court-Martial Order Number 3, issued by Headquarters, 7th Infantry Divisionand Fort Ord, Fort Ord, California on 19 January 1984, noted that the applicant'ssentence had been affirmed and ordered the BCD duly executed.

7.The applicant was discharged on 7 February 1984.  His DD Form 214 (Certificate ofRelease or Discharge from Active Duty) shows he was discharged under the provisionsof Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3,as a result of court-martial, with his service characterized as bad conduct.

8.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process.  In accordance with Title 10, USC, Section 1552, the authority underwhich this Board acts, 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-martialprocess and then only if clemency is determined to be appropriate.  Clemency is an actof mercy or instance of leniency to moderate the severity of the punishment imposed.

9.The applicant provides 51 third-party character reference letters, in which theauthors generally attest to the applicant's strength of character and his positivecontributions to society.

10.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the applicants 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, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency.  The ABCMR 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.  The Board found insufficient evidence of in-service mitigating factors for the very serious misconduct; the Board considered the 51personal reference letters the applicant provided, but found them insufficient toovercome the serious misconduct and support a clemency determination.  Based on a 


preponderance of evidence, the Board determined that the character of service theapplicant received upon separation was not in error or unjust. BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: XXX :XXX :XXX 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. 


X CHAIRPERSON


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, in effect at the time, set forth the basic authority for the separation of enlisted personnel: 
 
 a.  Paragraph 3-7a provides 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 provides 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 3 provided that an enlisted person would 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.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, 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.  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 
 
//NOTHING FOLLOWS//