ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180012935 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC88-05708 on 30 November 1988. Specifically, he requests his bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 August 1980 * Department of Housing Preservation and Development letter, dated 7 January 2004 * nine pages of American Red Cross housing documents, dated between 18 July and 31 July 2018 * Privacy Release Form, dated 29 July 2018 * self-authored statement, 7 September 2018 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC88- 05708 on 30 November 1988. 2. The applicant states he joined the military to be a man on his own. He was making rank with various promotions until Soldiers got him involved with drinking alcohol and smoking marijuana. He did not know where to get help when he needed it most. He spent time in prison and was released from prison and the Army. He really wanted to stay in because his peers showed him where he went wrong and changed him to be a leader. His discharge made him feel like a bad person and he was depressed for years. He is now a homeless man with no family, an upgrade of his discharge will allow him to start his life over again. 3. The applicant enlisted in the Regular Army on 30 November 1976. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, on: * 23 September 1977, for failure to go at the time prescribed to his place of duty on or about 18 September 1977 * 9 March 1978, for failure to go at the time prescribed to his place of duty on or about 9 March 1978 * 14 June 1978, for willfully disobeying a lawful order on or about 6 June 1978 * 11 February 1980, for being drunk and disorderly on or about 6 February 1980 * 11 July 1980, for behaving with disrespect toward a superior commissioned officer on or about 30 June 1980 * unknown date, for failure to go at the time prescribed to his place of duty on or about 7 July 1980 5. Before a special court-martial on 27 June 1979, the applicant was found guilty of attempting to commit sodomy and aggravated assault on or about 1 January 1979. The court sentenced him to reduction to the rank/grade of private/E-1, confinement at hard labor for six months, forfeiture of pay for six months, and discharge from the service with a BCD. The sentence was approved, except for that portion pertaining to the BCD, and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. Special Court-Martial Order Number 228, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 14 December 1979, noted that the applicant having served the period of confinement was restored to duty pending completion of appellate review. 7. The sentence and guilty findings were affirmed by appellate review on 16 April 1980. 8. Special Court-Martial Order Number 73, issued by Headquarters, 18th Airborne Corps and Fort Bragg, Fort Bragg, NC on 13 August 1980, ordered the sentence duly executed. 9. The applicant was discharged on 22 August 1980. His DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial, with his service characterized as bad conduct. 10. The Board should consider the applicant's statement and evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant had no wartime service and no evidence of mitigating circumstances for the serious misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of The Board agreed that the applicant’s discharge characterization is appropriate. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 11 provided that an enlisted person would be given a BCD 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. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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//