BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20180015256 APPLICANT REQUESTS: The applicant’s next of kin (NOK) requests that his bad conduct discharge (BCD) be upgraded to Honorable and a personal appearance. 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) * Personal Letters * Letters 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. 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 Numbers AC82-07064 and AR20110013385 on 2 December 1982 and 22 August 2011. 3. The NOK requests an upgrade from BCD to honorable discharge with the knowledge that the applicant’s court-martial conviction will remain as guilty. 4. The applicant enlisted in the Army on 12 September 1974 for 2 years. He completed both Basic Training and Advanced Individual Training and was awarded the MOS of 82C (Artillery Surveyor) and was assigned to Fort Hood, Texas. The highest rank he achieved was Private First Class on 11 May 1975. 5. On 23 July 1976, the applicant was seen before and found guilty by general court- martial for: * Unlawfully entering the Post Exchange to commit a criminal offense * Stealing o 11 Lighters o 2 ladies Wallets o 3 men’s wallets o 4 Cameras o 2 Electric Razor o 16 men’s watches o 1 ladies watch o 1 football helmet 8 track radio o 4 radios * Conspiring to commit larceny and housebreaking into the property of the Army. 6. The applicant was sentenced to a dishonorable discharge, reduced to Private E1, forfeit all pay and allowances, and confined at hard labor for 3 years. 7. On 21 June 1977, the applicant was restored to duty pending completion of appellate review and the portion of the sentence adjudging partial forfeitures shall not apply to pay becoming due him during the period commencing on the date of this order, and terminating on the date of the order directing execution of the sentence. The appellate review affirmed the findings as guilty; however, reassessed his sentencing on the basis of the entire record and amended his sentence to hard labor for 2 years. 8. On 23 April 1979, he was discharged. His DD Form 214 shows he completed was given a dishonorable discharge. He completed 3 years and 24 days of total active service. Of Note block 27 remarks states the applicant had time lost of 556 days; 533 days excess leave; and was retained in the service for 954 days for the convenience of the Government. 9. On 22 November 1982, the applicant submitted a request of correction of his military records to ABCMR. The board determined that there was insufficient evidence to indicate probable material error or injustice and denied the request. 10. The NOK provided a packet containing achievements of the applicant post military. The applicant provided 2 personal letters that spoke of how he apologizes for the mistake he made and how much he has grown as a result of his wife. He believes that his love from his wife and his obedience to God has made him understand the things that he did wrong. He volunteered to attend counseling because of the support of his wife. His wife made him understand that his past is what he created out of ignorance with bad choices and a lack of patience. The applicant’s NOK wrote 2 letters of support referencing the achievements the applicant has made in life, both pre and post military. The NOK believes that the sentencing for the crimes the applicant committed back in the 70s were meant for him to pay society back for the rest of his life. She believes that the applicant is a family man and has put effort and labor into his life span of employment. She spoke on how the applicant has become better psychologically, spiritually, and emotionally by learning how to apply the coping skills she has taught him. 11. The regards to the applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. 12. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is empowered to change the severity of the sentence imposed in the court-martial process. 14. The applicant’s records shows that he was found guilty by court-martial of Unlawful Entry, Stealing, and Larceny. He was initially sentenced to 3 years hard labor, reduction to Private E1, and forfeiture of all pay with a dishonorable discharge. The appellate review board amended his sentencing to 2 years hard labor, reduction to Private E1, and forfeiture of all pay with a dishonorable discharge. The NOK and applicant state that the applicant is remorseful of the decision he made and has many achievements since leaving the military. 15. 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: 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 applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. 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. 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 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. Chapter 11 established policy and procedures for separating members was with a dishonorable or bad conduct discharge. Chapter 11 stated a Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court- martial and the appellate review must have been completed and the affirmed sentence ordered duly executed. c. 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. d. 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. e. 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, security reasons, or for the good of service in selected circumstances. f. A member 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. 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) AR20180015256 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015256 5 ABCMR Record of Proceedings (cont) AR20180015256 4