ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20180009241 APPLICANT REQUESTS: * reconsideration of his previous request for upgrade of his bad conduct discharge * set aside of punishment of Charge III and Charge III, Specification 1 * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Applicant to Army Board or Correction of Military Record * Self-Authored Statement * Newspaper Article * Letters of Support (8) 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. 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 AR2001061292 on 31 October 2001 and AR20080006781 on 30 July 2008. 3. The applicant provides: a. A self-authored letter to ABCMR, dated 10 April 2018, in which the applicant states the United States Court of Military Appeals set aside the findings of guilty for Specification 1 of Charge III (forgery) and returned the record of trial to the Judge Advocate General for remand the court for reassessment of the sentence based on the remaining findings of guilty. b. A self-authored letter, dated 20 May 2018, which describes the sudden death of his brother and how his complicated emotions led to alcoholism which affected his Army career. c. A newspaper article on the death of his brother. d. A letter of support from XX, dated 23 May 2018, which states that prior to death of the applicant’s brother, he was a caring friend. However, after boot camp, he noticed changes in his friend’s behavior as he began to drink heavily. He believes that due to his heavy grief, the applicant should not have been allowed to enlist in the Army. e. A letter of support from XX, a friend for 30 years, which states, after the tragic death of the applicant’s brother, he became isolated, withdrawn, angry, aggressive and negative. He adds that his drinking increased and depression was evident. f. A letter of support from XX, dated 15 May 2018, which states that the applicant should not have went into the Army right after his brother’s death. g. A letter of support from XX, dated 3 April 2017, which states the applicant is a hardworking and dedicated person with high moral character and integrity. h. A letter of support from XX, dated 31 March 2017, a friend of 35 years, which states the applicant encountered trouble during the Army, however, he has been a positive and productive person. He adds the applicant was a mentor to him on many development and construction sites and believes he is a brother and friend. i. A letter of support from XX, dated 25 March 2017, which states the applicant goes above and beyond to support his co-workers. He is generous, organized and dedicated to completing all work projects. j. A letter of support from XX, dated 23 March 2017, an employment and education specialist, which states for over two years, the applicant has continued to improve and enhance his job skills for employment. k. A letter of support from XX, which states he has known the applicant for many years and believes that he is loving, caring, and will go above and beyond for anyone in need. Also, he adds the applicant is has a tremendous work ethic and is man of faith and strong convictions. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 June 1981. b. On 1 September 1983, he accepted non-judicial punishment (NJP) under Article 15, under Uniform Code of Military Justice (UCMJ) for breaking restriction. He received a reduction to the grade of E3 and forfeiture of $100 pay. c. On 1 December 1983, he accepted NJP under Article 15, UCMJ for being disrespectful in language and deportment towards his superior noncommissioned officer (NCO). He received reduction the grade of E1, forfeiture of $200 pay, and 45 days extra duty. d. On 8 May 1984, he accepted NJP under Article 15, UCMJ for: * disobeying a lawful order * altering an DD Form 689 (Individual Sick Slip) e. On 25 July 1984, he was convicted by a special court-martial and found guilty of: * one specification of disobeying a lawful order of a superior NCO * one specification of disrespectful language to a superior NCO * one specification of intent to defraud by falsely making a check for $100 The court sentenced him to confinement at hard labor for 3 months, forfeiture of $397 pay for 3 months and a bad conduct discharge. f. On 11 October 1984, the convening authority approved the sentence and except for the bad conduct, ordered it executed. The record of the trial was forwarded for review by the U.S. Army Court of Military Review. g. On 13 November 1987, the U.S. Army Court of Military Review affirmed and approved only so much of the sentence as provides for a bad-conduct discharge. h. Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Court-Martial Order Number 37, dated 14 July 1988, shows that after completion of all appellate reviews, only as much of the sentence as provides for a bad conduct discharge was duly executed. i. On 19 September 1988, the applicant was discharged from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, in effect at the time, with a bad conduct characterization of service. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he completed 6 years, 9 months and 26 days of net active service with 65 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 5. Based on the information available in the applicant’s service records, he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. However, the findings of the case are unavailable for review. 6. By regulation applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. By regulation, (AR 635-200), in effect at the time, 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. 8. By law and regulation, court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 9. 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: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions and letters of support 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. The Board does not set aside court-martial findings. The applicant accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. Based upon the level of misconduct and the time that has passed since his discharge, the Board agreed an Under Honorable Conditions (General) character of service is warranted. 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 amendment of the ABCMR's decision in Docket Number AR2001061292 on 31 October 2001 and AR20080006781 on 30 July 2008. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 19 September 1988 showing his character of service as under honorable conditions (General). 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 changing his court-martial findings and a personal appearance. 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, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states that 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 (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other Than Honorable Conditions) states a discharge under other than honorable conditions is administrative separation from the service under conditions other than honorable. d. Chapter 3-11 of this regulation, states that 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. 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. 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) AR20180009241 6 1