BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190003440 APPLICANT REQUESTS: * upgrade of his bad conduct discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. He has completed two higher education programs from two different schools gaining two certificates of certification in building construction and building maintenance technician. He is currently involved in the church clean and sober program, and he is ministering to the homeless and elderly with his wife/pastor. He is attempting to enroll into the police academy chaplain program but the bad conduct discharge is hindering his progress. b. Because he was 19 at the time and just out of high school looking to make the military his career, a misunderstanding led to the end of his dream of military service. He was forced to plead guilty under duress. He is a senior citizen and he would like his record of service to his country to be honorable for his children and his grandchildren. 3. On 28 January 1983, he enlisted in the Regular Army for a period of 4 years. 4. On 5 March 1984, he received non-judicial punishment under the provisions Article 15 of the Uniformed Code of Military Justice, for forging his first sergeant’s signature on a loan application, which he knew was false. He elected not to appeal. 5. On 15 August 1984, he was tried and convicted by a special court-martial of larceny of private property valued at $857.00. a. The court sentenced him to a bad conduct discharge, forfeiture of $397.00 per month for 4 months, and confinement at hard labor for 4 months. b. On 20 September 1984, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed. c. Special Court-Martial Order Number 460 issued by the U.S. Army Correctional Fort Riley, KS, on 19 November 1984, shows the unexecuted portion of the approved sentence to confinement at hard labor for four months, not subsequently modified, was remitted. d. On 29 March 1985, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. e. Special Court-Martial Order Number 240 issued by the U.S. Army Correctional Activity, Fort Riley, KS on 12 November 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed. 6. On 2 December 1985, the applicant was discharged from the Army. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. He completed 2 years, 6 months, and 27 days of active military service with lost time from 15 August to 20 November 1984. His service was characterized as bad conduct. 7. On 25 August 1986, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge and determined he was properly and equitably discharge. 8. The applicant's contentions that he was young and immature at the time and his post service achievements were carefully considered. The Board notes: a. He was 20 years of age, had satisfactory completed training requirements, and had served for more than a year before any negative incidents are documented. His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature. b. The applicant’s post service activities, however, these activities are not so exceptionally meritorious as to outweigh the offense that resulted in his discharge especially in light of the fact that his military record is devoid of significant service. 9. By regulation, 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. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. 11. 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. 12. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 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 considered the applicant’s service record, the serious nature of his misconduct, his statement regarding post-service conduct and whether to apply clemency. The Board found there were no mitigating factors at the time of the misconduct, but determined that the punitive BCD was too harsh a punishment and further determined that clemency should apply. The Board also determined that the records were sufficient to allow a fair and equitable consideration and denies the applicant’s request for a personal appearance. 2. After reviewing the application and all supporting documents, the Board determined 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 the applicant’s DD Form 214 for the period of service ending 2 December 1985 to show in item 24 (Character of Service) – “Under Other Than 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 upgrading the character of service to under honorable conditions or honorable and to granting the applicant’s request for a personal appearance. 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) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. 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. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. ABCMR Record of Proceedings (cont) AR20190003440 2 ABCMR Record of Proceedings (cont) AR20190003440 1