ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20190004794 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) * seven third-party character reference statements FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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. The applicant states, while on active duty, he behaved in a manner that was unfit as a respectable adult, which led him to receiving the discharge that he now has. He knows he has grown from the person he was in 1976. He is now an honorable person, who works in the community, with his church and for his family. He has evolved into a person that honors truth, hard work, and service to others. It is his goal to have his undesirable discharge upgraded to a more desirable discharge that reflects who he is now as an adult. He no longer thinks or acts as a child. He conducts himself as a respectful and law abiding citizen. 3. The applicant enlisted in the Regular Army on 8 June 1972. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following offenses: a. On 20 November 1973, for being found drunk while on duty, on or about 17 November 1973. b. On 4 February 1974, for being found drunk on duty, on or about 22 December 1973, and for disobeying a lawful order from a commissioned officer, on or about 25 December 1973. c. On 28 February 1974, for absenting himself without authority, from on or about 25 February through on or about 27 February 1974. 5. Before a general court-martial on or about 11 July 1975, at Darmstadt, Federal Republic of Germany, the applicant was convicted of: * wrongfully possessing .56 grams, more or less, of heroin, on or about 1 April 1975 * assaulting a military police (MP) officer, on or about 30 April 1975 * wrongfully appropriating a truck valued at $845.80, the property of the U.S. Government, on or about 9 May 1975 * operating a vehicle while drunk, on or about 9 May 1975 He was sentenced to be discharged from the service with a BCD; to forfeit $100.00 pay per month for four years; to be confined at hard labor for four years; and to be reduced to the lowest enlisted pay grade. The sentence was approved on 4 September 1975 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. General Court-Martial Order Number 759, issued by Headquarters, U.S. Disciplinary Barracks on 25 August 1977, noted that the applicant's sentence had been affirmed following the completion of the appellate review process, including his separation from service with a BCD. His separation was ordered duly executed. 7. The applicant was discharged on 23 October 1978. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as a result of a court-martial and his service was characterized as under other than honorable conditions. He was issued a DD Form 259A (BCD Certificate). 8. The applicant submitted seven third-party character statement letters that, in effect, attest that the applicant: * is an exceptional neighbor * consistently shows love and concern to all his neighbors * is a faithful volunteer at the church * he gets involved with any program or event that is requested of him * is an assistant football coach at the high school * is a faithful church member * has been a member of the church for 15 years * is a dedicated family man * is a man of great integrity and moral fiber * has a tireless work ethic and a loving positive attitude 9. The Board should consider the applicant's seven third-party character statement letters in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief to upgrade the applicant’s discharge characterization to general under honorable conditions. 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 the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have partially mitigated the misconduct resulting in the discharge characterization. ? 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 changing the discharge characterization of service on his DD Form 214 dated “78-10-23” to “General under 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 characterization of his discharge to “Honorable”. 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, U.S. Code, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 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. /NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190004794 4 1