ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20190003422 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140015559 on 9 April 2015. Specifically, he requests his dishonorable discharge be upgraded to an under honorable conditions (general) discharge and a change in his narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States), dated 4 February 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140015559 on 9 April 2015. 2. The applicant submitted a new argument with this application that was not considered by the Board during its initial consideration. This new argument warrants consideration at this time. 3. The applicant states: a. At the time of his discharge, he was unfairly charged with a number of minor offenses, including fighting/assault and disrespecting a noncommissioned officer (NCO). He was never given proper training to correct his behavior. b. While he was serving in the Army during a chaotic time, he was young and he was just starting out in life. He had to complete high school as a homeless student and he enrolled in the military to escape the streets, which lead to a few transition problems and later caused him to be discharged altogether. c. While he was not completely innocent of all charges, he was not guilty of many of the charges that were levied against him during his court-martial. The Army was to be a starting point for him in his life at that time but due to bad leadership and problems in his personal life, he was unable to complete the transition to military life before he was discharged. An upgrade of his discharge will allow him to move forward and receive many of the resources he did not have because of the type of discharge he received. 4. The applicant enlisted in the Regular Army on 7 June 1985. He completed training as a small arms repairer. He arrived in Germany on 6 November 1985. 5. The applicant's record contains DA Forms 4187 (Personnel Action) that show he was reported by his unit as absent without leave (AWOL) on 12 September 1986, he returned to duty on 10 October 1986, he was AWOL again on 13 December 1987, and he returned to duty on 25 December 1987. 6. General Court-Martial Order Number 22, issued by Headquarters VII Corps on 14 April 1987, shows the applicant was tried before a general court-martial on or about 13 February 1987, at Stuttgart, Germany. a. He was convicted of the following offenses: * wrongfully using marijuana between 15 April and 15 June 1986 * wrongfully possessing marijuana or hashish on 29 May 1986 * assault and battery on 29 May 1986 * wrongfully possessing marijuana or hashish on 14 June 1986 * wrongfully using marijuana between 19 June and 14 July 1986 * assault with a means likely to produce grievous bodily harm on 17 July 1986 * assault and battery on 17 July 1986 * AWOL from on or about 14 September through on or about 10 October 1986 * wrongfully communicating a threat on 12 December 1986 * AWOL from on or about 13 December through on or about 25 December 1986 b. He was found not guilty of the following: * disrespecting an NCO on 16 June 1986 * willful disobedience of an NCO on 9 July 1986 * assaulting a superior NCO on 9 July 1986 * disrespecting a superior NCO on 9 July 1986 * assault and battery on 29 May 1986 c. The applicant was sentenced to reduction in rank/grade to private/E-1, forfeiture of all pay and allowances, confinement for 18 months, and separation from service with a dishonorable discharge. 7. The convening authority approved the sentence as adjudged on 14 April 1987 and, except for the portion of the sentence extending to a dishonorable discharge, ordered the sentence executed. The applicant was credited with 47 days of confinement against his sentence of confinement. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 8. The applicant returned to the U.S. on 18 November 1986. 9. The U.S. Army Court of Military Review affirmed the general court-martial findings and sentence on 21 September 1987. There is no evidence that the applicant petitioned the U.S. Court of Military Appeals for a grant of review. 10. General Court-Martial Order Number 158, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS on 30 May 1989, noted that the approved sentence had been finally affirmed and ordered the dishonorable discharge executed. 11. The applicant was discharged on 23 June 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10. His DD Form 214 shows his narrative reason for separation was "as a result of court-martial, other." He was discharged in the rank/grade of private/E-1 and was issued a dishonorable discharge. 12. Army Regulation 635-200, in effect 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. 13. 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. 14. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his conviction by a court-martial, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for his serious misconduct and the applicant provided no evidence of post-service achievements of letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and reason for separation on the applicant’s DD Form 214 was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence duly executed. 3. 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 ABCMR 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. 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. ABCMR Record of Proceedings (cont) AR20190003422 6 1