IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190006585 APPLICANT REQUESTS: The applicant requests his bad conduct discharge (BCD) be upgraded to a general/under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement 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 when he joined the Army and had every intention of serving this country honorably as his father did who was honorably discharged from the Navy during WWII. Unfortunately he had some trouble during basic training and was honorably discharged before basic training graduation. Fortunately he was able to reenlist with the help of one of the Drill Instructors, who was a Vietnam veteran; he’s never forgotten him or the help he gave. a. The second time around he was able to graduate with his unit and was permanently assigned to Fort Hood. He never went to AIT; he was trained on the job as a generator mechanic. Once he got to his unit, he was put into an environment that he was too young and immature to handle. Before he joined the Army he never drank or did drugs but once he arrived to his unit in Texas, he started drinking and using drugs and his unit turned a blind eye. b. After two years he was sent to Korea; it was pretty much the same environment that he had in Texas. Just about everyone was drinking and doing lots of drugs. He started drinking and doing drugs daily like everybody else; it was the norm. The chain of command didn’t care. He started having blackouts more and more. No one in his chain of command ever tried to get him help; they stood there watching, while he drank himself out of the Army. c. During his blackouts, he hit a girl in the club outside the gates of the compound in Korea. The next thing he knew, he was in the stockade waiting to get court-martialed. At the court-martial, he was tried and convicted of some kind of an assault charge and sentenced to a year at Leavenworth. d. After a year at Leavenworth he was flown to Fort Bragg where he was processed out of the Army with a bad conduct discharge. The Army put him in an environment that he was too young and immature to handle and helped him to become a blackout drinker and drug abuser then kicked him out. e. The chain of command that were supposed to be looking out for young Soldiers like him never tried to do anything to help him get off the path of destruction, the Army helped put him on. He has had to live with this shame of the bad conduct discharge ever since. The Army let me down and he let his father down. 3. On 15 October 1976, at the age of 19, the applicant enlisted in the Regular Army for a period of three years. 4. On 16 March 1978, the applicant received non-judicial punishment (NJP) for failing to go at the prescribed time to his appointed place of duty and failure to follow a lawful order. 5. On 18 July 1978, the applicant received NJP for being absent without authority (AWOL) from on or about 30 June 1978 to on or about 2 July 1978. 6. A Bar to Enlistment/Reenlistment Certificate dated 18 December 1978, shows his commander initiated a bar to reenlistment. The applicant acknowledged the bar and elected not to submit a statement on his behalf. The command recommended he be barred from reenlistment for unsatisfactory conduct, for specifically: * Receiving NJP for being absent from his place of duty on 18 July 1978 * Receiving NJP for being absent from his place of duty on 21 Feb 1978 * Counseled six different times for absences, or tardiness prior to his NJP being administered, personnel appearance 7. On 30 January 1979, the appropriate authority approved the Bar to Reenlistment and instructed the correspondence would be placed permanently in his personnel records; the remark, “Not recommended for further service”, will be entered on his qualification record; the bar would be reviewed by the unit commander and would be considered for removal if the applicant had proven himself worthy of retention. 8. On 19 June 1979, the applicant underwent a General Court-Martial (GCM) and was found guilty for the following offenses outside the territorial limits of the United States; not being cognizable in a U.S. civilian court for: * Committing assault upon Ms. K__ by choking her neck with his hands on two separate occasions * Unlawfully strike Ms. K__ on the head with his fist * Unlawfully strike Ms. S_ on her chest with his fist and grab her neck with his hands * Being AWOL from on or about 12 March 1979 to on or about 14 March 1979 * Wrongfully have in his possession some amount of marijuana * Unlawfully strike a female Specialist on the face with his fist and grab her neck with his hands 9. On 20 June 1979 the sentence was adjudged and the applicant was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for one year, and forfeit $250.00 per month for twelve months. 10. On 17 June 1980, the applicant received NJP for being AWOL from the Personnel Control Facility, Processing Detachment, Fort Bragg, on or about 9 June 1980 to on or about 10 June 1980. 11. On 27 June 1980, the applicant was discharge accordingly. His DD Form 214 shows he completed 2 years, 8 months, and 21 days net active service. Approximately 2 days AWOL. 12. The applicant states before he joined the Army he never drank or did drugs but once he arrived to his unit in Texas, he started drinking and using drugs and his unit turned a blind eye. After two years he was sent to Korea; it was pretty much the same environment that he had in Texas. Just about everyone was drinking and doing lots of drugs. a. He started drinking and doing drugs daily like everybody else; it was the norm. The chain of command didn’t care. He started having blackouts more and more. During his blackouts, he hit a girl in the club outside the gates of the compound in Korea. The next thing he knew, he was in the stockade waiting to get court-martialed. At the court-martial, he was tried and convicted of some kind of an assault charge and sentenced to a year at Leavenworth; he was flown to Fort Bragg where he was processed out of the Army with a bad conduct discharge. b. The chain of command that were supposed to be looking out for young Soldiers like him never tried to do anything to help him get off the path of destruction, the Army helped put him on. He has had to live with this shame of the bad conduct discharge ever since. The Army let me down and he let his father down. 13. A review of his records show he graduated high school; completed basic combat training (BCT); was awarded military occupational skill (MOS) 52B (Power Generation Equipment Operator; highest rank he held was Private First Class (PFC). His record is void of him being evaluated for alcohol or drug use. 14. 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. 15. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 16. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense 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 regarding his drug and alcohol related behaviors, the frequency and nature of his misconduct, his bar from reenlistment, the severe misconduct that led to his separation and whether to apply clemency. The Board found insufficient in-service mitigating factors for his misconduct and the applicant provided no post-service achievements or letters or reference in support of a clemency determination. The Board determined that the character of service he received upon 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): 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states 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), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. 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. ABCMR Record of Proceedings (cont) AR20190006585 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006585 7 ABCMR Record of Proceedings (cont) AR20190006585 5