ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190007755 APPLICANT REQUESTS: The applicant requests an upgrade of his dishonorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 it has been about 40 years since he was dishonorably discharged from the Army, and he does not believe that he should still be paying the price for it. It is not in his criminal background. 3. On 11 February 1980, he enlisted in the Regular Army for a period of 3 years. 4. On 27 April 1981, a general court-martial tried and convicted the applicant. a. Consistent with his pleas, the court found him guilty of attempted rape of a female; and assault and battery on a patrolman. b. The court sentenced him to 5 years confinement at hard labor, forfeiture of all pay and allowances, reduction to private (PV1)/E-1, and to be dishonorably discharged from the service. c. On 25 July 1981, the general court-martial convening authority approved the sentence. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 5. On 5 November 1981, the U.S. Court of Military Appeals affirmed the approved findings of guilty and the sentence. 6. General Court-Martial Order Number 151, issued by U.S. Army Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, on 1 March 1982, show that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed. 7. On 29 March 1982, the applicant was discharged. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with paragraph 11-1, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), with a dishonorable discharge. 8. By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 9. 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. 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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, his record of service, his court-martial conviction, the reason for his separation and whether to apply clemency. The Board found no in-service mitigating factors for his serious offense and the applicant provided none; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that clemency was not warranted and 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 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. 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, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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. 2. 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. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provides that: a. An honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. b. A general discharge is a separation from the Army under honorable conditions. It was issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A member was to be given a dishonorable discharge only pursuant to an approved sentence of a general court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. 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 (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.