ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 August 2019 DOCKET NUMBER: AR20180012341 APPLICANT REQUESTS: * an upgrade of his Bad Conduct Discharge (BCD) to a general (GD), under honorable conditions discharge or that his service be uncharacterized * a personal appearance before the Board 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) * statement of support 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 would like an upgrade, so he can move on in life without being treated differently. He would like benefits, because he was a kid and he was also treated differently, because of the color of his skin. He was in a unit that was very prejudiced towards Blacks and he was lied on and falsely accused of crimes he did not commit. 3. The applicant provides a letter, dated 10 July 2018, from an Alabama State Senator stating that he strongly supports the applicant and knows his family very well. He has worked with them on various community initiatives and they are good, active citizens. He knows the applicant and proverbially speaking, he did not fall from these two good trees. The applicant believes he was discriminated against and whatever the situation, the Senator urges the Board to review the case and change the BCD to a GD or to an uncharacterized discharge. We all make mistakes. He asks the Board to change the BCD so applicant will not be haunted by this “life sentence.” 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 August 2003. b. He was convicted by a general court-martial on 24 November 2004 of being absent without leave (AWOL) for about two weeks, two assaults on a commissioned officer (the first by striking an officer in the throat with his forearm and the second by pushing an officer in the chest), and one assault on a noncommissioned officer by pushing him in the upper body. His sentence included reduction to the lowest enlisted grade, forfeiture of $795.00 per month for twelve months, confinement for 175 days and a BCD. c. On 5 March 2005, in General Court-Martial Order Number 3, the convening authority approved the sentence and except for that part of the sentence extending to the BCD, ordered the sentence executed. The convening authority noted the applicant would be credited with 136 days of confinement toward his sentence to confinement. d. General Court-Martial Order Number 145, dated 18 May 2006, ordered the BCD executed, as the applicant’s case was affirmed and Article 71(c) had been complied with the Bad Conduct Discharge will be executed. e. For unknown reasons, the administrative actions necessary to accomplish the applicant’s discharge from the Army were not executed until 2014. f. He was discharged from active duty on 17 July 2014 with a BCD, by reason of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * Item 12c (Net Active Service This Period), 10 years, 7 months, 2 days * Item 13 (Decorations, Medals, Badges, etc. Authorized or Awarded), National Defense Service Medal, Global War on Terrorism Medal, Army Service Ribbon * Item 18 (Remarks), includes the notes, “Excess Leave (Creditable for All Purposes Except Pay and Allowances)—3,486 days: 20041231- 20140717//Member Has Not Completed First Full Term of Service//DD Form 214 Administratively Issued/Reissued on 20140717” * Item 29 (Dates of Lost Time During This Period), Under 10 USC 972: 20040729-20041202 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 6. By regulation, applicants are not entitled to personally appear before the Board. 7. By regulation, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Only Soldiers in entry- level status may have their service described as uncharacterized. 8. 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 not warranted. The applicant’s contentions and letter of support was 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 short term of honorable service completed prior to a pattern of misconduct, which included violent behavior towards others, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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 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) 15-185 (Boards, Commissions, and Committees—Army Board for Correction of Military Records), in effect at the time, provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states 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. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 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 (Under other than honorable conditions discharge) states a discharge under other than honorable conditions in an administrative separation from the service under conditions other than honorable. d. Paragraph 3-11 (Bad conduct discharge) states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court- martial. The appellate review must be completed and the affirmed sentence ordered duly executed. e. Paragraphs 11-1 through 11-8, set forth the policy regarding entry-level separations. Generally, entry-level separations may be warranted in cases of Soldiers who have shown inability, lack of effort, failure to adapt to the military environment, or have committed minor disciplinary infractions. Soldiers are in an entry-level status, if they have completed no more than 180 days of continuous active duty. The service of Soldiers separated while in entry-level status will be described as uncharacterized. 4. 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS//