BOARD DATE: 31 January 2020 DOCKET NUMBER: AR20180008746 APPLICANT REQUESTS: The applicant requests, in effect, an upgrade of his bad conduct discharge. 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) * Letters of support * Enlistment documents * Meritorious Service Medal (MSM) * National Personnel Records Center (NPRC) letter 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. On 22 March 1984, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded military occupational specialty 12B (Combat Engineer). He immediately reenlisted on several occasions. 3. On or about 22 April 1988, the applicant acknowledged receipt of a letter of reprimand (LOR). He read and understood the unfavorable information presented against him and elected not to make a rebuttal. His chain of command recommended enrolling him in Track I Operation Awareness and filing the LOR in his official military personnel file (OMPF). He was a sergeant when he received the LOR. 4. His record shows he served in Southwest Asia from 14 August 1990 to 1 April 1991. 5. On 29 December 1994, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for drunk driving on 6 November 1994. A breath analysis test administered at the time of arrest established his blood alcohol content to be 0.13%. He acknowledged receipt of the GOMOR and indicated he did not intend to submit a rebuttal. He was a staff sergeant when he received the GOMOR. a. His chain of command recommended filing the GOMOR in his OMPF, and stated, as a noncommissioned officer (NCO) he had failed to set the example and appeared to have a problem with alcohol based on recent behavior. b. The GOMOR issuing authority reviewed the reprimand and endorsements, and directed the GOMOR to be filed in the applicant’s OMPF. 6. The applicant’s OMPF contains an NCO Evaluation Report covering the period of June 1994 to May 1995 that states, in pertinent part: * he was charged with driving under the influence twice * he was charged with larceny of government property * his unauthorized possession of government explosives was detrimental to safety * he betrayed all the trust of his superiors by his criminal conduct * he had no potential for future service 7. On 8 September 1995, the Department of the Army imposed a bar to reenlistment under the Qualitative Management Program against the applicant. The Calendar Year 1995 Sergeant First Class/Advanced NCO Course Promotion/Selection Board identified two letters of reprimand issued on 22 April 1988 and 29 December 1994 as the basis for his bar to reenlistment. 8. The charges for which he was tried by court-martial were not contained in the available records. On 12 April 1996, Headquarters, United States Army Garrison, Fort Dix, NJ, General Court-Martial Order (GCMO) Number 38 announced the bad conduct discharge adjudged on 30 March 1995, as promulgated in GCMO Number 14, Headquarters, 82d Airborne Division, Fort Bragg, NC, dated 2 June 1995, had been finally affirmed and the bad conduct discharge was ordered executed. That portion of the sentence pertaining to confinement had been served. 9. On 9 April 1997, after completion of appellate review, Headquarters, United States Army Armor Center and Fort Knox, KY, GCMO Number 65 announced the bad conduct discharge adjudged on 30 March 1995, as promulgated in GCMO Number 14, dated 2 June 1995, had been finally affirmed and the bad conduct discharge was ordered executed. That portion of the sentence pertaining to confinement had been served. 10. Orders 153-0163 issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, discharged the applicant on 6 June 1997. 11. The applicant’s DD Form 214 shows he was discharged on 6 June 1997 by reason of court-martial with a bad conduct character of service. He had lost time during this period from 30 March to 24 September 1995, and was on excess leave from 1 May 1996 to 6 June 1997 (402 days). He was award or authorized the: * Army Commendation Medal (2nd award) * Army Achievement Medal (4th award) * Army Good Conduct Medal (3rd award) * National Defense Service Medal * Southwest Asia Service Medal with 2 bronze service stars * NCO Professional Development Ribbon (basic level) * Army Service Ribbon * Multinational Force and Observers Medal * Kuwait Liberation Medal (Saudi Arabia) * Kuwait Liberation Medal (Kuwait) * Parachutist Badge * Expert Qualification Badge with M-16 Rifle Bar 12. In support of his case, the applicant provided copies of an MSM Certificate, NPRC letter and enlistment documents. He also provided letters of support stating, in pertinent part: * the applicant was an honorable man and an upright citizen * with the exception of the incident for which he was court-martialed, the applicant’s service was honorable * the applicant deserves medical care through the Department of Veterans Affairs (VA) and Veterans Health Care (VHC) system; his current discharge prohibits medical treatment by the VHC system * he took training seriously and had a stellar reputation within the battalion * the applicant developed into a dedicated and mentoring NCO * he is truly a caring and compassionate person * he was trusted and had the safety of his troops in the forefront of his mind 13. 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. 15. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 16. Army Regulation 15-185 (ABCMR), provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 17. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 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 record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors in support of a clemency determination. The Board noted the letters of support the applicant provided, but found them insufficient to support a recommendation for clemency considering the gravity of being found guilty of charges that resulted in a sentence that included a bad conduct discharge. Based on a preponderance of evidence, the Board determined the character of service the applicant 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 :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, 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) sets forth the basic authority for the separation of enlisted personnel. The regulation prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 3. Army Regulation 15-185 (ABCMR), provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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. 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) AR20180008746 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008746 6 ABCMR Record of Proceedings (cont) AR20180008746 5