IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180004175 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his dishonorable discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060008555 on 6 March 2007 and AR20070013599 on 22 January 2008. 2. The applicant states: a. After boot camp, in October of 1981, he was sent to Germany. His period of service there was characterized by his obligation to serve his country. He was promoted quickly from pay grade E-1 to E-4. He was a serious Soldier. He became a Military Policeman, after his initial military occupational specialty of 19E, due to his ability as a basketball player, and the desire that his command had to keep him available on base to play. He was stationed there for two years, during which time his service was stellar. b. Prior to boot camp, his mother had passed away, and he was the only sibling who was dealing with this issue as a child. All of his brothers and sisters are twenty years older than him. This event was a big part of the reason that he joined the military. He was the only child being raised by his mother, and he felt that he was all alone after she passed. He quit school, and the event of his mother's death was a catalyst for events that followed in his life, with which he is still dealing with to this day. Being in Germany allowed him to focus on his military career, and get him away from an environment, where he was reminded of the impact of this tragedy. Accordingly, when he came back to Fort Carson after Germany, and was again exposed to a familiar environment, which started to bring back feelings that he could not handle in his young age, he began to get into drugs, and his military career went downhill from there. c. Currently, he is happily married, and a father of nine children. Him and his wife have established and incorporated a ministry in Colorado serving the homeless: (Mark and Demetria Skipper; www.livingwaterministry-outreach.org). He is devoted to the underserved, and he often helps fellow veterans in the community. The status of his discharge hangs over him, and that's part of the reason he is requesting an upgrade from a dishonorable to a general under honorable conditions. He often feels a sense of disappointment and shame when he is serving others through his ministry and knows that he is not recognized for his service to the country. Again, he is proud to have served his country, and he knows in his heart that the service he completed in Germany was honorable. 3. On 6 October 1981, the applicant was 21 years old and enlisted in the Regular Army for a period of 4 years. After completing basic and advanced individual training, he served an overseas tour in Germany. He was then reassigned to Fort Carson, Colorado, and served with the 2nd Battalion, 34th Armor Regiment. 4. On 8 April 1985, the applicant's commander barred him from reenlistment citing two non-judicial punishments (NJP) under the provisions of Articles 15 of the Uniform Code of Military Justice for absenting himself from his place of duty and other misconduct. 5. On 1 May 1985, he accepted NJP for absenting himself from his place of duty. On 31 May 1985, the applicant accepted NJP again for breaking restriction and absenting himself from his place of duty on three occasions. 6. The applicant was apprehended on 26 June 1985, and placed in the custody of his unit's Staff Duty Officer and Staff Duty Noncommissioned Officer, and was placed in confinement on 26 June 1985. However, the applicant escaped through a window after a short time, and was placed in an absent without leave (AWOL) status again. On that same date, he was apprehended by the Colorado Springs Police Department and charged with shoplifting. 7. On 28 June 1985, civil authorities turned the applicant over to military authorities, and he was placed in military confinement at that time. 8. On 20 August 1985, the applicant was tried and convicted by a general court-martial. He was found guilty of the following offenses: * unauthorized absence from his unit from 24 to 26 June 1985 * unauthorized absence from his unit again on 26 June 1985 * larceny of a Hawk Function Engine Analyzer, of some value, property of the Army and Air Force Exchange Service * larceny of a wallet containing various forms of identification, of some value and United States currency, of a value of $130.00, private property of another Soldier * wrongful appropriation of a firearm, of some value, private property of another Soldier * wrongfully and unlawfully making a false statement 9. The applicant's punishment from his general court-martial consisted of a reduction in rank to private/pay grade E-1, a forfeiture of all pay and allowances, a dishonorable discharge, and confinement for 18 months. 10. On 8 October 1985, his sentence was approved, but the execution of that part of the sentence adjudging confinement in excess of 1 year was suspended for 17 months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence was to be remitted without further action. The applicant was also credited with 53 days of pre-trial confinement against the sentence to confinement. 11. On 12 February 1986, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. 12. On 16 May 1986, the United States Court of Military Appeals denied the applicant's petition for review. 13. On 17 June 1986, after completion of appellate review, general court-martial order number 443 announced the applicant’s sentence had finally been affirmed, and ordered the dishonorable discharge executed. 14. On 2 July 1986, the applicant was dishonorably discharged from the Regular Army pursuant to a duly reviewed and affirmed court-martial order and was issued a Dishonorable Discharge Certificate. His DD Form 214 shows he had lost time from 26 June 1985 to 6 April 1986. He was not awarded a personal decoration. 15. In his previous applications the applicant essentially stated that his dishonorable discharged was supposed to be upgrade to an honorable discharge after 7 years. However, there is no regulation or provision of law that requires that a dishonorable discharge could or should be upgraded to an honorable discharge after 7 years. His previous discharge upgrade requests were denied on 6 March 2007 (ABCMR Docket Number AR20060008555) and returned without action on 22 January 2008 (ABCMR Docket Number AR20070013599). 16. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. 17. The applicant's entire record of service was considered using the available documents. The fact that the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice four times, and had a bar to reenlistment imposed upon him in addition to his general court-martial, which resulted in a dishonorable discharge, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition. 18. Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. 19. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides, in pertinent part: a. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 20. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The new evidence presented justifies amending the prior ABCMR decisions on the basis of clemency in consideration of the applicant’s post service conduct. Accordingly, the prior ABCMR decision AR20070013599 on 22 January 2008 should be amended to change the applicant’s dishonorably discharge to a general under honorable conditions discharge also in consideration of his 3˝ years of acceptable conduct as a Soldier. 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 that the evidence presented was 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 showing that he was discharged on 2 July 1986 with a characterization of general under honorable conditions. 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, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides, in pertinent part: a. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. 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. 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, 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. 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// ABCMR Record of Proceedings (cont) AR20180004175 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004175 7 ABCMR Record of Proceedings (cont) AR20180004175 6