ARMY BOARD FOR CORRECTION OF MILITARY RECORDS ECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180016561 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * National Personnel Records Center Letter * Letter of Support, 22 August 2018, PNDC 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 that he admits to his faults and he takes full responsibility for his actions. He is proud to have served in the Army and since he has been discharged from the service, he has been gainfully employed to include owning his own plumbing business. He has been married for over 35 years and has raised 2 children who both received their Master Degrees in education and chemical engineering. He asks that to that the Board accepts his apology. 3. The applicant provides the following: a. A letter from the National Personnel Records Center dated 20 June 2018, informing him that his separation document is enclosed. b. A letter of support from civic group, dated 15 August 2018, that states the applicant is a member of their organization and he goes back over the last ten years in which he has always given support to the causes in their community. The applicant volunteers his time, efforts and equipment to assist with their mission and serve their community at large by using his own equipment to help with fund-raisers, preparing flyers and notifications for corresponding activities, lead efforts to distribute materials to the public for promotion and assist with adding images on social media for the public to review. The letter states that their relationship with the applicant is appreciated and he has proven to be a beneficial member that they have enjoyed as one of their own. c. A letter of support from a neighborhood development corporation, dated 22 August 2018, states the applicant is a frequent visitor at their facility and he has been a helpful part of the community over the years. He has assisted with their food pantry that helps to serve food to the surrounding community by volunteering his time and distributing food using his vehicle to make deliveries to the public. He has used his professional expertise to help with their plumbing by providing what is needed to continue operating without charging his usual “plumbing rate.” The organization said they are extremely grateful for the applicant’s willingness to continually work with them in a non-profit organization and, it is people like him that they can count on. 4. A review of the applicant’s record show: a. He enlisted into the Regular Army on 14 August 1974. b. He served in Germany from 20 February 1976 to 22 September 1976. c. On 23 September 1976, the applicant was convicted by a general court-martial of one specification of rape on or about 22 May 1976. He was sentenced to confinement at hard labor for three years and a bad conduct discharge (BCD). d. On 19 November 1976, the convening authority approved the sentence and except for that part of the sentence for hard labor in excess of 18 months is suspended until 18 May 1978, at which time suspension is sooner vacated, the suspended portion shall be remitted without further action. The record of trial is forwarded to the Judge Advocate General of the Army for review by a Court of military Review, pending completion of appellate review the accused will be confined. e. On 19 August 1977, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record they should be approved, such findings of guilty and the sentence was affirmed. f. General Court-Martial Order Number 92, issued on 15 February 1978 shows the sentence had been affirmed and would be executed. g. On 28 June 1978, the applicant was discharged. His DD 214 (Report of Separation from Active Duty) shows he was discharged in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate. He completed 3 years, 1 month and 13 days of net active service the applicant had 272 days of lost time. He was authorized or awarded a Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 5. By regulation, discharges under the provisions of AR 635-200 (Personnel Separations Enlisted Personnel), paragraph 11 -2 provides that 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. 6. 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 for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement of remorse, his record of service, the serious nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no in-service mitigating factors for his conduct and found the letters in support of a clemency determination to be insufficient to overcome the serious, criminal nature of the offense. Based on a preponderance of evidence, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. 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: 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). 8/19/2019 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 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. Paragraph 1-13a states an (Honorable Discharge) is a separation with honor and entitles the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable dis charge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge d. Paragraph 1-13b states a (General Discharge) is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not as bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when dis charged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in in the member’s military personnel record. e. Paragraph 1-13c states a (Under Other than Honorable Conditions Discharge) is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for homosexuality, for security rea sons, or for the good of the service (see para 1-17, issuance of an under other than honorable conditions discharge. 3. 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. 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 based on 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. 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.