ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 November 2019 DOCKET NUMBER: AR20190008874 APPLICANT REQUESTS: The applicant requests in effect, his bad conduct discharge (BCD) be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Primary Leadership Course Certification of Completion •Promotion Certificate •Five Training Certificates •Three Commendation Letters •Service School Academic Evaluation Report •Good Conduct Medal (2nd Award) •Honorable Discharge Certificate •Certificate of Military ServiceFACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20100014328 on 1 December 2010. 3.The applicant states he was court-martialed for the possession of marijuana but wasnever in possession of the substance. It’s not clear what he was court-martialed for.Looking back there is no clear reason for the court-martial. 4.On 16 August 1976, the applicant enlisted in the Army Reserve for six years at theage of 19; he entered active duty and served honorably from 12 October 1976 from 26 June 1980 as a 13B, Cannoneer. He was awarded the Army Good Conduct Medal (GCMDL) prior to his reenlistment. On 27 June 1980, he reenlisted the Regular Army for a period of four years. 5.On 20 December 1985, the applicant received non-judicial punishment (NJP) forfailing to be at his appointed place of duty. 6.On 4 April 1986, he underwent a special court-martial (SPCM) and was found guiltyof: •Larceny of property a value of $5,803.57 •Disobeying a lawful order from a noncommissioned officer (NCO) •Disrespect to a superior NCO 7.On 6 June 1986, the sentence was adjudged and the applicant was reduced toPrivate, forfeiture of $400.00 pay per month for three months, and sentenced toconfinement for three months. 8.On 6 October 1986, he was reassigned to the 4th Company 2nd Battalion, US ArmyCorrectional Activity, Fort Riley, Kansas for the purpose of VET training. 9.A memorandum dated, 7 November 1986, shows the applicants voluntary excessleave status was changed to involuntary excess leave effective 5 November 1986 as aresult of approval of his sentence by the convening authority, pending appellate review. 10.GCMO No. 439, shows the applicant appealed his sentence to the U.S. Court ofCriminal Appeals and on 31 October 1986, the sentence was affirmed and the BCD wasexecuted. He was granted a 74 day administrative pay credit against his approvedsentence. The part of the sentence extending to confinement has been served. 11.On 5 November 1986, the applicant was reassigned to the 6th Company 3rdBattalion, US Army Correctional Activity, Fort Riley, Kansas for administrative purposes. 12.On 17 July 1987, the applicant was discharged accordingly. His DD Form 214shows he completed 6 years, 7 months, and 19 days net active service; he had 152days of lost time because of imprisonment after expiration term of service (ETS). Hewas also awarded a GCMDL (2nd Award), the Army Service Ribbon, an OverseasService Ribbon, a NCO, Professional Development Ribbon 13.He provides a copy of his Primary Leadership Development Certificate, hisPromotion Certificate to Sergeant, Five Training Certificates, Three Letters ofCommendation, an Evaluation Report, a GCMDL order, his Honorable DischargeCertificate, and a copy of his Certification of Military Service. 14.Army Regulation 635-200 (Personnel Separations) provides a Soldier would begiven a bad conduct discharge pursuant only to an approved sentence of a general orspecial court-martial and that the appellate review must be completed and the affirmedsentence ordered duly executed. 15.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, U.S. Code, section 1552, the authorityunder which this Board acts, the ABCMR is not empowered to set aside aconviction. Rather, it is only empowered to change the severity of the sentenceimposed in the court-martial process and then only if clemency is determined to beappropriate. Clemency is an act of mercy or instance of leniency to moderate theseverity of the punishment imposed. 16.The applicant states he was court-martialed for the possession of marijuana butwas never in possession of the substance. It’s not clear what he was court-martialedfor. The applicant’s record does not show he was ever court-martialed for marijuanahowever was court-martialed on 4 April 1986 for, Larceny of property a value of $5,803.57, Disobeying a lawful order from a noncommissioned officer (NCO),Disrespect to a superior NCO. His record shows, he did serve honorably from 12October 1976 from 26 June 1980 earning a GCMDL. 17.In reaching its determination, the Board should consider the applicant's petition, hisservice record, and his statement in light of the published Department of Defenseguidance on equity, injustice, or clemency. BOARD DISCUSSION: 1.After reviewing the application and all supporting documents, to include the DoDguidance on liberal consideration when reviewing discharge upgrade requests, theBoard found that relief is not warranted.2.The Board noted that the applicant received the BCD as a result of a SPCM thatfound him guilty of larceny of property a value of $5,803.57, disobeying a lawful orderfrom a NCO, and disrespect to a superior NCO. These are serious violations of theUniform Code of Military Justice the commission of which undermines the discipline,trust, and unit cohesion required in the Army to survive on the battle field. The Boardnoted that the applicant had legal support and SPCM appeal review. The appealconfirmed the findings of the SPCM and confirmed the BCD. Under the circumstances,the Board found the BCD equitable and just. The Board did not find reason to grantclemency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 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): 1.Although not required at the time, the September 2000 revision of AR 635-5 mandated the inclusion of remarks for separating Soldiers who received aless than honorable character of service; the regulation required the addition of thefollowing remark: "CONTINUOUS HONORABLE SERVICE FROM 12 October 1976 -26 June 1980." 2.As a result amend item 18 (Remarks) of his DD Form 214 with separation end dateby adding "CONTINOUS HONORABLE SERVICE from 19761012 to 19800626" REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations 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) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each casewith the presumption of administrative regularity. The applicant has the burden ofproving an error or injustice by a preponderance of the evidence. 3.Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basicauthority for the separation of enlisted personnel. a.Chapter 3, section IV (Enusre to cite the correct paragraph bases on separationdate), 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 honorableconditions. 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 thejudicial process. In accordance with Title 10, U.S. Code, section 1552, the authorityunder which this Board acts, the ABCMR is not empowered to set aside aconviction. Rather, it is only empowered to change the severity of the sentenceimposed in the court-martial process and then only if clemency is determined to beappropriate. Clemency is an act of mercy or instance of leniency to moderate theseverity of the punishment imposed. 5.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in acourt-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. //NOTHING FOLLOWS//