ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20190004604 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 is requesting an upgrade to allow him to obtain Department of Veterans Affairs (VA) benefits. 3. The applicant enlisted in the Regular Army on 7 October 1976. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on at least six separate occasions between June 1977 and February 1979. The various DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) show he accepted NJP infractions including but not limited to: * failure to report to his appointed place of duty at the prescribed time * disobeying a lawful order * being absent without leave (AWOL) from on or about 27 November through on or about 4 December 1978; from on or about 1 February through on or about 5 February 1979; and from on or about 13 April through on or about 15 April 1979 5. Before a summary court-martial on or about 7 March 1979, at Schofield Barracks, Hawaii, the applicant was convicted of being AWOL from on or about 14 February through on or about 21 February and from on or about 23 February through on or about 6 March 1979. 6. A Commander's Inquiry, dated 20 June 1979, reports that the applicant was transferred to the 6th Unit, 3rd Battalion, U.S. Army Retraining Brigade, and on 15 May 1979, separation proceedings were initiated based on his failure to successfully complete training. The applicant went AWOL seven days later. 7. Before a special court-martial on or about 2 November 1979, the applicant was convicted of being AWOL from on or about 22 May through on or about 19 September 1979. He was sentenced to separation from service with a BCD, forfeiture of $250 pay per month for three months, and confinement at hard labor for three months. The special court-martial order pertaining to this conviction is not available for review in this case. 8. The U.S. Army Court of Military Review affirmed the applicant's sentence in the aforementioned special court-martial on 20 February 1980. The applicant did not petition the U.S. Court of Military Appeals for a grant of review. 9. The available record does not contain a copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty). 10. A National Archives (NA) Form 13038 (Certification of Military Service), dated 3 March 2010, shows the applicant served from 7 October 1976 through 12 June 1980, and his service was terminated by a BCD. 11. The Board may consider the applicant's implied request requesting clemency in a consideration for granting relief in accordance with the published equity, injustice, or clemency determination guidance. 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 found insufficient evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the misconduct that resulted in the discharge characterization. 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. X CHAIRPERSON 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 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides 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 – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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 provided 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-11 provided that a Soldier would be given a BCD only pursuant 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. 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. 5. 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. //NOTHING FOLLOWS//