ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20190003445 APPLICANT REQUESTS: In effect, an upgrade of DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is honorable in lieu of bad conduct. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 (ABCMR) 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 ABCMR in Docket Number AR20110013115 on 5 January 2012. 3. The applicant states in an application to this Board, dated 7 February 2019, that, in effect, after reading the court record, he realized there are numerous unsubstantiated allegations in the record that were not proven. The records also revealed slanderous and incorrect allegations about activities that involved mutual consent. But he was charged with lesser charges. During the trial he made several attempts to correct the record and declare himself innocent. After 10 years of distinquished service, awards and medals one alleged accusation has destroyed his career. 4. The applicant served honorably in the Regular Army (RA) from 24 March 1976 to 25 February 1979 until he was separated for reenlistment. 5. He reenlisted in the RA on 26 February 1979 for 6 years and he held military occupational specialty (11B) Infantryman. He was assigned to Germany on 14 October 1976. 6. Headquarters, 32nd Army Air Defense Command, General Court-Martial Order Number 9, published on 9 July 1980, shows the applicant pled not guilty to all charges. He was found guilty and he was convicted by a general court-martial of rape and wrongfully communicating a threat on 11 August 1979; assault with intent to rape, wrongfully communicating a threat, and sodomy, on 17 November 1979. On 1 May 1980, he was sentenced to serve 5 years in confinement, reduction to pay grade E-1, a forfeiture of all pay and allowances, and a bad conduct discharge (BCD). 7. On 9 July 1980, the convening authority approved the sentence, ordered the applicant's confinement in the U.S. Disciplinary Barracks, Fort Leavenworth, KS, and the record of trial was forwarded to The Judge Advocate General of the Army for review by a U.S. Army Court of Military Review. 8. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court- Martial Order Number 276, published on 24 April 1981, confirmed the applicant's court- martial sentence was affirmed. The provisions of Article 71(c) having been complied with, and that portion of the sentence pertaining to confinement at hard labor having been served, the sentence was ordered duly executed. 9. Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, Kansas, Order 103-6, published on 28 May 1981, shows the applicant was discharged, effective 11 June 1981, with a BCD. 10. The DD Form 214 the applicant was issued shows he was discharged under the provisions of paragraph 11-2, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He completed 1 year, 2 months, and 5 days of net active service this period. He also completed 2 years, 11 months, and 2 days of total prior active service and he had lost time from 1 May 1980 through 11 June 1981. 11. His DD Form 214 also shows in Remarks: Item 28 (Narrative Reason for Separation): Headquarters, 32nd Army Air Defense Command, APO New York 09175, General Court-Martial Order Number 9, dated 9 July 1980, as corrected by Court- Martial Order Correcting Certificate, U.S. Army Court of Military Review, dated 15 July 1980, and Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 276, dated 24 April 1981. 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. Absent mitigating factors, the type of discharge directed and the reasons were appropriate. 13. The applicant contends there are numerous unsubstantiated allegations in the court record that were not proven. The record also contains slanderous and incorrect allegations about activities that involved mutual consent. During the trial he made several attempts to correct the record and declare himself innocent. He also has many years of distinguished service, awards and metals, and one alleged accusation and his career was destroyed. a. The available evidence shows he pled not guilty to all charges, however, he was found guilty and convicted by a general court-martial of five charges: rape and wrongfully communicating a threat (2 offenses), assault with intent to rape, and sodomy. b. The applicant's request and did not specifically state which offenses he believes were unsubstantiated and slanderous or involved mutual consent. 14. The applicant completed 1 year and 2 months, of his current 6 year service obligation. 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 guidance. 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 discussed his service record, the severity of his misconduct and court-martial conviction, his statement and whether to apply clemency. The Board found no mitigating factors for the misconduct and the applicant provided no additional evidence in support of clemency. The Board determined that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined 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 to amend the decision of the ABCMR set forth in Docket Number AR20110013115 on 5 January 2012. 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 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. Chapter 11 (Dishonorable and BCD), paragraph 11-2, provides that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered 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. 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.