ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190003475 APPLICANT REQUESTS: The applicant requests upgrade of his dishonorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for period ending 29 June 1982 * Two Letters/Character References 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 he contracted an illness during his military service and he cannot get medical for his current conditions due to his characterization of service. 3. On 21 May 1975, at the age of 19 years old, the applicant enlisted in the Regular Army for a term of 4 years. On 13 July 1978, he was honorably discharged for immediate reenlistment. On 14 July 1978, he reenlisted for a term of 3 years. 4. His record shows he accepted nonjudicial punishment (NJP) on: * 30 August 1975 for wrongfully possessing one ounce, more or less, of marijuana * 29 January 1976 for wrongfully possessing one ounce, more or less, of marijuana; punishment: forfeiture of pay per month for two months, which on 29 July 1976, one month of the forfeiture of pay was set aside * 6 June 1976 for stealing 120 Deutschmark (German currency) from a taxi cab driver * 20 October 1976 for being disrespectful in language towards his superior noncommissioned officer (NCO) by saying to him "m_ f_" (expletive) and communicating a threat to injure a NCO by whipping his a_ (expletive) * 24 October 1980 for unlawfully entering the quarters of another Soldier * 30 March 1981 for being derelict in the performance of his duties, to wit: failing to report personnel of his squad who were smoking marijuana and control members of his squad during the field exercise 5. His personnel qualification record-part II shows he was assigned in Panama from 19 July 1977 to 4 November 1980. 6. On 9 September 1981, the applicant was convicted by general court-martial of one specification each of * rape (in conjunction with another Soldier) * stealing * kidnapping for the purpose of rape (in conjunction with another Soldier) * wrongfully having in his possession of marijuana * failing to go at the time prescribed to his appointed place of duty 7. He was sentenced to reduction to the grade/rank of private one (PV1)/E-1, forfeiture of all pay and allowances, a dishonorable discharge, and confinement at hard labor for four years. On 21 October 1981, the convening authority approved the sentence. On 30 December 1981, the U.S. Army Court of Military Review (USACMR) affirmed the findings of guilty and the sentence. On 13 January 1982, the applicant acknowledged receipt of the USACMR decision. On 15 January 1982, the applicant petitioned the U.S. Court of Military Appeals (USCMA) for grant of review of his case (decision not available for review). On 15 June 1982, the sentence was ordered executed. 8. On 29 June 1982, the applicant was discharged accordingly. His service was characterized as dishonorable as a result of court-martial. His DD Form 214 shows he completed 1 year and 5 months of net active service this period with 2 years, 3 months, and 21 days of Foreign Service and 3 years, and 1 month and 23 days of prior active service. However, there is a discrepancy in the calculation of his net active service this period, based on his date entered active duty [reenlistment date] and his separation date it should read 3 years, 11 months and 16 days. This form also shows: * He was awarded or authorized the Army Good Conduct Medal * Dates of Time Lost During This Period: Under Title 10, U.S. Code, Section 972; (810625 – 810713); after normal expiration term of service (810714 – 820629) (370 days lost) 9. The applicant provided two letters/character references, attesting to his good character as a Soldier, friend, father, and a Christian. 10. The applicant states he contracted an illness during his military service and he cannot get medical care for his current conditions due to his characterization of service. His record shows he enlisted at the age of 19 years old, he accepted six NJPs, he was convicted by general court-martial for rape, stealing, kidnapping for the purpose of rape, wrongfully possessing marijuana, and failing to go at the time prescribed to his appointed place of duty, and he had 370 days lost due to confinement. He served 35 months of his 38 months contractual obligation. 12. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. 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 statement and character references, his overall record of service, the frequency, nature and severity of his misconduct and whether to apply clemency. While the applicant provided post-service factors in mitigation to consider, the Board found insufficient mitigation to overcome the severity of the misconduct and determined that the character of service the applicant received at separation 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): A review of the applicant’s record shows his DD Form 214 contains error and/or is missing entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by: * Deleting from item 12c (Net Active Service This Period): "01 00 05" and adding "03 11 16" * Adding to item 18 (Remarks): "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" and "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 750521 UNTIL 780713" 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. 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. 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. d. A member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20190003475 4 1