ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180013662 APPLICANT REQUESTS: Upgrade of his bad conduct discharge to general. 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) 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 is requesting an upgrade of his discharge in order to obtain medical benefits through the Department of Veterans Affairs (VA) and to gain employment through the VA. He recently was awarded custody of his daughter and was given health care through the VA for her, but he was denied. 3. The applicant provides, a. A self-authored statement dated 19 July 2018. He is writing this letter on his own behalf asking the review board to please review his current status in order for his discharge to be upgraded. He knows that he made mistake in the past during his time in service and he is asking for consideration to have those mistakes expunged in order for him to obtain benefits. He deeply regret the mistakes, and since then, he has dedicated his life to helping others. At the present moment, he is currently doing an internship at the Marilyn Center, a substance abuse and rehabilitation facility to become a certified alcohol and drug abuse counselor. Again, he is placing himself at the mercy of the review board, and hopefully his discharge will be upgraded and expunged from his record. If any further information is needed, please feel free to contact him as stated above. b. A statement from R.A., he would like to take the opportunity to offer a formal recommendation for the applicant. He had the privilege for serval years to observe his work ethics as a counselor intern. He completes assignments in a timely manner and when not clear, he will not hesitate to ask for clarity. He demonstrates a passion for learning and helping others. He believes the applicant is deserving of the Army Review Board to consider giving him a second chance and grant him an upgrade. c. A statement from X___, he has known the above referenced person for approximately five years. During this time, he has watched him mature both personally and professionally into a dynamic human being. Personally, he has been an excellent single parent who obviously adores his baby girl and is constantly showering her with love and affection. Additionally, he is always there when she requires his attention. He sees to it that she is a well maintained, healthy, happy and well-adjusted little girl. Secondly, he is a terrific neighbor. d. Professionally, he has worked with the applicant in a community service agency for a little over five years where he worked in numerous capacities. He has always preferred to work directly with the consumer. He is extremely compassionate and sympathetic to the problems and plight of the under-privileged. He goes above and beyond the call of duty to resolve their problems to make things right and whenever possible, take an extra step to refer clients to other agencies for benefits and services to enhance their life, which they may be entitled too. 4 The applicant service record shows: a. He enlisted in the Regular Army on 1 October 1980 b. He accepted nonjudicial punishment on/for * 28 December 1982 for failing to be at the time of his appointed place of duty on or about 17 December 1982, reduction to private/E-2 (suspended) * 8 April 1983 for failing to be at the time of his appointed place of duty on or about 30 March 1983, reduction to private/E-2 * 30 June 1983 for stealing a wallet of a value of about 11.00 containing 96.00, reduction to private/E1 c. On 30 November 1983, he was convicted by a general court-martial (Number 86) of one specification of presenting six DA Forms 3037, statement of claimant requesting stoppage of payment on checks, and six DA Forms 2139, military pay voucher, to Lieutenant Colonel X___, an officer of the United States duly authorized to approve and pay such claims, present for approval and payment six claims against the United States in the total amount of $943.00 for casual payments in lieu of receipt of six mid-month paychecks, which claims were false and fraudulent in the amount of 943.00 in that the said Private X___. had previously received and cashed the said six mid-month paychecks and were then known by the said Private D.G. to be false and fraudulent. The court sentenced him to, forfeit all pay and allowances, confinement at hard labor for 6 months, with a bad conduct discharge. The sentence was adjudged on 12 December 1983. d. On 28 December 1983, the convening authority approved the sentence and ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review e. On 23 January 1984 , the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence. f. On 4 May 1984, GCMO 152, 3d Battalion, US Army Correctional Activity, Fort Riley, Kansas , approved sentence to a bad conduct discharge, confinement at hard labor for six months, and forfeiture of all pay and allowances The accused will be confined in the US Army Correctional Activity, Fort Riley, Kansas 66442, and the confinement will be served therein or elsewhere as competent authority may direct. g. On 11 May 1984, he was discharged from the Army. The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a bad conduct characterization of service. He completed 3 years, 2 months, and 10 days of creditable military service with lost time between 12 December 1983 to 10 May 1984. 4. By regulation, an enlisted person 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. a. 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. b. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. 5. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the misconduct and the demonstrated growth shown by the applicant, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. 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 the evidence presented is 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 635-200 (Personnel Separations – Enlisted Personnel), 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 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 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) sates a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. d. Paragraph 3-10 (Bad Conduct discharge) states 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. 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. 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. 5. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. ABCMR Record of Proceedings (cont) AR20180013662 5 1