BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180016718 APPLICANT REQUESTS: An upgrade of his bad conduct discharge (BCD) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a different narrative reason for separation. 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), dated 23 October 2018 * DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States), dated 23 October 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to file in a timely manner. 2. The applicant states: a. He excelled in basic combat training and advanced individual training. He completed training as a power generation equipment repairer. All of his life watching television and listening to both of his grandfathers, he thought the Army would be different. He was put in a shop with 43 generator mechanics. He was not much on drinking but of course, in Germany that is all there was to do. He loves fishing and camping, which is what the Army trained him to do, so he purchased gear and went camping on his free time. b. The military police (MP) spotted him camping and he was made to leave because he was not in a lighted area. The next day, he purchased two lights to light up the area and when the MP returned he was placed in handcuffs and detained. His commanding officer (CO) was called to pick him up and that’s when his troubles began. When he told his CO he was on his own time and when he asked why he was in trouble, he was told to stop being a smart a** and things went downhill from there. c. He tried to get child support for his daughter. He and the finance officer contacted his ex-wife and she stated she did not want Army money, she wanted his money. d. He found another Soldier smoking hash and he was offered some. Months later, he was caught with some hash and he failed a drug test. He was charged with distribution of hash but he was found not guilty. In regard to his one and only thirty minute absence without authority, the sergeant knew he was going to be late but he would not admit to it. 3. The applicant enlisted in the Regular Army on 4 April 1985. He completed training as a power generation equipment. He arrived in Germany on 13 September 1985. 4. The applicant accepted nonjudicial punishment (NJP) on 15 May 1986, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 18 April 1986 until on or about 21 April 1986, and for willfully disobeying a lawful order, on or about 18 April 1986. 5. Before a general court-martial on 9 October 1986, at Baumholder, Germany, the applicant was convicted, pursuant to his pleas, of the following offenses: * wrongful use marijuana, on or about 23 May 1986 * wrongful possession of 1.87 grams of marijuana in the form of hashish, on or about 3 June 1986 * failure to repair, on or about 7 July 1986 * being AWOL on or about 7 July 1986 * failure to repair, on or about 16 July 1986 6. The applicant was sentenced to confinement for three years, forfeiture of all pay and allowances, and separation from service with a BCD. The convening authority approved only so much of the sentence as provided for confinement for fifteen months, forfeiture of all pay and allowances, and separation from service with a BCD, and except for that part of the sentence extending to a BCD, ordered the sentence to be executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 7. The applicant departed Germany on 9 October 1986, enroute to the continental U.S. 8. The U.S. Army Court of Military Review, on 12 June 1987, held the findings of guilty and sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence were affirmed. 9. General Court-Martial Order Number 6, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS on 26 January 1988, noted the sentence as approved by the convening authority had been affirmed. The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered to be executed. The order noted that at the time, the applicant was a member of the Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on excess leave without pay. 10. The applicant was discharged on 26 February 1988. His DD Form 214 confirms: * his service was characterized as "bad conduct" * he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11 * his narrative reason for separation was "as a result of court-martial, other" 11. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 12. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 13. The Board should consider the applicant's statement 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 sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed the characterization for the misconduct was severe and an under honorable conditions characterization is warranted as clemency; however, the reason for his discharge remains adequate. 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 reissuing him a DD Form 214 showing the characterization of service as under honorable conditions. 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 amending his DD Form 214 to show a different reason for separation. 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 sets 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. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. 3. 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. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, 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. 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) AR20180016718 4 ABCMR Record of Proceedings (cont) AR20180016718 1