IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20190002200 APPLICANT REQUESTS: The applicant requests that his bad conduct discharge (BCD) be upgraded to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 249 (Application for Review of Discharge from the Armed Forces) * DD Form 214(Certificate of Release or Discharge from Active Duty) * 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 Number AR20080016605 on 23 January 2009. 3. The applicant requests and upgrade from BCD to general in order to receive medical benefits. 4. The applicant enlisted into the Regular Army on 20 June 1979 for 3 years at the age of 18. He completed both basic and advanced individual training and was awarded the military occupational specialty (MOS) 31J (Teletypewriter Repairer). The highest rank he achieved was Specialist four (SPC4/E-4) on 20 December 1980. 5. A review of the applicant’s records shows that he received 3 Article 15s for: * On 3 August 1981 o for willfully disobeying a lawful order from his superior noncommission officer o for being disrespectful in language toward his superior noncommissioned officer * On 6 November 1981 for failing to go at the time prescribed to his appointed place of duty * On 10 February 1982 for being absent without leave 6. On 25 March 1982, the applicant was convicted by a special court-martial of two specifications of stealing the personal property of two Soldiers on 8 February 1982. He was sentenced to confinement at hard labor for four months, forfeiture of $367.00 pay per month for four months, and to be discharged from the Army with a BCD. The sentence was adjudged on 16 April 1982. 7. On 4 August 1982, 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. 8. On 1 December 1982, the appropriate authority approved the sentence and ordered it duly executed. Of note, the portion of the sentence to confinement has been served and the applicant was presently a member of the 24th Infantry Division on excess leave without pay. 9. On 1 December 1982, the applicant was discharged. His DD 214 shows that 3 years, 2 months and 1 day of net active service with awarding of the Army Service Ribbon and the Sharpshooter M-16 rifle. Of note, the applicant had 102 days of lost time due to being AWOL and confinement. 10. On 23 January 1982 the applicant submitted a request of correction of his military records to ABCMR. The Board determined that the overall merits of the case are insufficient as a basis for correction of the records of the individual concerned. 11. The applicant provided two letters of support. One letter of support spoke of the applicant’s high degree of integrity, responsibility and service to others. The other spoke of how desperately the applicant needs medical care and an upgrade will assist. 12. The applicant states that he was convicted for receiving stolen goods. He thought that he was doing a friend a favor by keeping the goods at his house. He didn’t know they were stolen. The two that was convicted of stealing was given retraining and the other a general discharge. The applicant feels he received the harshest punishment of the 3. He feels he was young and stupid and is asking for a chance to enhance his life. 13. The applicant’s records shows that he was found guilty by court-martial for stealing personal property. He was sentenced to hard labor for 4 months, forfeiture of $367.00 pay per month for 4 months, and to be discharged with a BCD. 14. 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 no wartime service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Therefore, 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) AR20190002200 4 ABCMR Record of Proceedings (cont) AR20190002200 1