ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20190007713 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 27 March 2019, with self-authored statement * DD Form 214 (Report of Separation from Active Duty), for the period ending 3 May 1979 * DD Form 214 (Certificate of Release or Discharge From Active Duty), for the period ending 10 February 1984 * 20 third-party character reference letters 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 (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, in effect: a. He was young, immature, and self-medicating when he was in the military. He served in military occupational specialty (MOS) 19D (Cavalry Scout) for 5 years and 11 months. He has since turned his life around. b. He joined the Army in November of 1968. Being very young and away from home, he started drinking. After three years at Fort Riley, Kansas, he was sent to Fort Ord, California. He was there for about a year and a half before being stationed in Germany. It seemed like he was in the field all the time and it started to wear on him. After about a year and half, he started drinking more and doing drugs. He started staying out and partying even longer than he did in Kansas. He was in the field so much in Germany, that he got angry with it. Many nights he would go out behind the club (at one of the border camps) and sit there with a .45 [caliber postol] in his hand and wonder if he should take his own life; luckily, he thought of what it might do to his mother and he pushed on. Being a scout is hard on anyone; they were out in the field nine months out of the year, or in the motor pool, or doing some type of training. He started drinking more and more as a result. Then he started using drugs more than alcohol. He started thinking he felt better when he was on something. Then he got the great idea to just leave, so he did and he would have gone back but he was afraid of his platoon leader and commander. In his mind the captain was off his rocker, so he decided to stay away. Alcohol and drugs were on his mind and in his body. He thought he was doing the right thing for himself, so he left. c. Now he is in his right mind, has a family that he cares about, and wants to do the right thing for them and himself. He is mature now and not on any drugs or alcohol. He has been clean since 08 August 2005. He has held the same job for almost 15 years, and also has a second job that he has had for 2.5 years. He has received a GOLDEN APPLE award from the school he works at. At one time, he was in the newspaper for being chosen as the employee of the month. He feels he has made mistakes in his past; now he feels that he is on the right track to make his life complete. He has changed, and he knows that it was not the military's fault for his discharge, it was his. He has gone long enough with the shame he put on himself and he deserves another chance. Life is hard enough without having this on his mind all the time. 3. The applicant enlisted in the Regular Army on 1 November 1976. He was honorably discharged for immediate reenlistment on 3 May 1979. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 4 May 1979. He was promoted to the rank/grade of sergeant/E-5 effective 17 March 1980. 5. The applicant accepted non-judicial punishment (NJP) on 25 August 1982, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from on or about 20 July through on or about 26 July 1982. His sentenced included his reduction to the rank/grade of specialist four (SP4)/E-4. 6. Before a special court-martial on or about 27 June 1983, at Fuerth, Germany, the applicant was convicted of absenting himself without authority, with the intent to remain away permanently, on or about 1 February 1983, and remaining so in a desertion status until he was apprehended on or about 25 March 1983. a. His sentenced included confinement at hard labor for two months; reduction to the rank/grade of private/E-1; and separation from service with a BCD. b. The sentence was approved on 21 July 1983 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 7. The applicant submitted a request, on 1 August 1983, to defer the unserved portion his sentence to confinement at hard labor until his appellate review had been completed. His request was approved on 9 August 1983. Additionally, on this date, he signed a memorandum in which he declined a separation medical examination. 8. The applicant was placed on excess leave without pay and allowances, effective 9 August 1983, pending completion of the appellate review. 9. The U.S. Army Court of Military Review affirmed the court-martial findings and sentence on 19 October 1983. 10. Special Court-Martial Order Number 36, issued by the U.S. Army Correctional Activity, Fort Riley, Kansas on 30 January 1984, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 11. The applicant was discharged on 10 February 1984, pursuant to his court-martial sentence. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, section IV, as the results of a court- martial sentence. His service was characterized as bad conduct. His DD Form 214 further shows in: * Item 12c (Record of Service – Net Active Service This Period), he was credited with completing 4 years, 2 months, and 19 days of net active service this period * Item 12d (Record of Service – Total Prior Active Service), he was credited with completing 2 years, 6 months, and 3 days of net active service * Item 18 (Remarks), the entry "Excess leave. Creditable for all purposes except pay and allowance. 169 days 831107 - 840210" * Item 29 (Dates of Times Lost During this Period), the entry "820423 - 820425; 820720 - 820725; 821227 - 821228; 830201- 830524; 830527 - 830808" 12. 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. 13. The applicants provides 20 third-party character reference letters, written by fellow coworkers and members of the Everett, WA education community, attesting to the applicant's professionalism, work ethic, and overall duty performance. 14. The Board should consider the applicant's statement, provided evidence, and the entirety of his records in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION 1. After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. 2. 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 letters of support from his coworkers, and found his honorable service prior to his misconduct, his exemplary post-service conduct, and his remorse to have mitigated the conduct that resulted in the characterization of his service. The Board agreed that, given the complete body of evidence, a general (under honorable conditions) discharge is appropriate. 3. The Board noted the applicant requested an upgrade of his discharge to fully honorable, but agreed that the body of evidence does not support an upgrade to fully honorable. 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 reissuing his DD Form 214 for the period ending 10 February 1982 to show his service was characterized as 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 any relief in excess of that described above. 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. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 set 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. Paragraph 3, Section IV of the version in effect at the time provided that a Soldier 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. 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. ABCMR Record of Proceedings (cont) AR20190007713 3