ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190008594 APPLICANT REQUESTS: The applicant requests, in effect, reconsideration to upgrade his bad conduct discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Self-written statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110002002 on 4 August 2011. 2. The applicant states: * 43 years ago he made a very bad choice at Fort Hood, TX, which resulted in him being court-martialed * his wishes he could right the bad judgement, and if there is one in life he could change, it would be that moment in 1976 * since then he has made many bad decisions that have kept him incarcerated in Texas * alcohol has been the cause of his bad judgement in 1976 and now; he is currently incarcerated for driving while intoxicated more than 3 times * in 1976 he was 20 years old and living life easy without thinking of the consequences of his actions * he is 63 years old now and can assure the Board he realizes life has consequences * when he gets out of jail he would like to participate in Veterans Administration programs that help others with addiction 3. On 11 February 1975, the applicant enlisted in the Regular Army with a moral waiver for a period of 4 years. He completed one-station unit training as an infantry indirect fire crewman at Fort Polk, Louisiana, and was then transferred to Fort Hood, Texas, on 25 June 1975. 4. The applicant was absent without leave (AWOL) on 14 May 1976 and remained absent until he returned to military control on 18 May 1976. 5. The applicant was AWOL again from 14 to 20 June 1976 and 14 to 22 July 1976. 6. On 22 July 1976, he was arrested and confined by civil authorities until 15 August 1976 when he was returned to military control. He again went AWOL from 18 to 21 August 1976. 7. On 15 October 1976, he was convicted pursuant to his pleas by a special court- martial of three specifications of being AWOL from 14 to 20 June 1976, 14 to 22 July 1976, and 18 to 21 August 1976 and two specifications of larceny of property belonging to two other Soldiers. He was sentenced to confinement at hard labor for 4 months, a forfeiture of $150.00 pay for 3 months, reduction to pay grade E-1, and a bad conduct discharge. He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas. 8. On 26 January 1977, he was restored to duty pending completion of his appellate review. 9. On 11 April 1977, the U.S. Army Court of Military Review affirmed the findings and his sentence as approved by the convening authority. 10. On 22 August 1977, the U.S. Court of Military Appeals denied the applicant's petition for review. 11. On 8 February 1978, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He completed 2 years, 5 months, and 16 days of active service and had 192 days of lost time due to civil and military confinement. 12. On 4 August 2011, the Army Board for Correction of Military Records (ABCMR) denied his request for an upgrade of his discharge. 13. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 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. 16. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. The regulation 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. 17. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. 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 concerning his misconduct, his record of service, the frequency and nature of his misconduct, his civil confinement and conviction by a special courts-martial and discharge and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for his misconduct and 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 the character of service the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20110002002 on 4 August 2011. 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, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. The regulation 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. 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.