ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180016490 APPLICANT REQUESTS: The applicant requests an upgrade of his bad-conduct discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 impregnated a German National and she came on the base and tried to commit suicide in front of the medical facility. The facility was across from his unit barracks. Her mother tried to have the applicant arrested and he became scared, which caused him to run. He stayed with friends and stayed out of trouble. 3. On 23 April 1979, at the age of 18 years old, the applicant enlisted in the Regular Army for a period of 3 years. After completing one station training, he was assigned overseas in Germany. 4. The record shows he accepted nonjudicial punishment (NJP) on: * 3 December 1979 for disobeying a lawful order from his commanding officer * 10 March 1981 for going from his appointed place of duty 5. On 9 September 1981, the applicant went AWOL and on 8 October 1981, he was dropped from the rolls. The commander’s report of inquiry/unauthorized absence shows he failed to return from the Continental of the United States (CONUS) leave. On 11 October 1981, he was returned to military control. 6. On 16 December 1981, he was convicted by special court-martial for two specifications of being AWOL from 9 September 1981 and remained absent until 11 October 1981 and from 18 October 1981 and remained absent until 11 November 1981, AWOL for a total of 56 days; and one specification of escape from lawful custody. He was sentenced to reduction to private one (PV1)/E-1, forfeiture of pay for two months, and confinement at hard labor for two months, and a bad conduct discharge. On 15 January 1982, the convening authority approved the sentence. On 18 March 1982, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. On 25 August 1981, the sentence was duly executed. 7. On 7 October 1982, the applicant was discharged accordingly. His service was characterized as a bad conduct discharge as a result of a court-martial. He completed 3 years and 28 days of net active service his period, with 2 years and 13 days of Foreign Service. His DD Form 214 (Certificate of Release or Discharge from Active Duty shows: * He was awarded or authorized: * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Marksmanship Qualification Badge * "Retained in service 169 days for the convenience of the Government per AR 635-200" * Dates of Time Lost During This Period: "810909-811010; 811018-811110; 811113-820204," AWOL for a total of 140 days 8. The applicant states he impregnated a German National and she came on the base and tried to commit suicide in front of the medical facility. The facility was across from his unit barracks. Her mother tried to have him arrested and he became scared, which caused him to run. His record shows that he enlisted at the age of 18 years old, he accepted two NJPs, and he was convicted by special court-martial for two specifications of being AWOL, resulting in 56 days of lost time, and one specification of escape from lawful custody. His DD Form 214 shows he had a total of 140 days of lost time. He completed his 36 months contractual obligation. 9. AR 635-200 states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. 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. 10. 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 only empowered to change the severity of the sentence imposed in the court-martial process. 11. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the misconduct that led to his separation, his statement of events and the application of clemency guidance. The Board determined that the punitive discharge was too harsh and recommends that his character of service be changed to UOTHC. 2. After reviewing the application and all supporting documents, the Board found that partial relief was 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 a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 7 October 1982 to reflect an Under other than honorable conditions character of service. 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 relief in excess of that above. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. 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. b. 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and a dishonorable discharge only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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. 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 the applicant. ABCMR Record of Proceedings (cont) AR20180016490 5 1