ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20190009409 APPLICANT REQUESTS: a review of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal 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: a. He enlisted in the United States Army on 9 October 1974, in Boston, MA. His job in the Army was 13B (Cannoneer). He went through advance individual training (AIT) at Fort Huachuca, AZ. While there, an incident happened where a buddy of his asked him to pawn a projector. At the time, he was a bit inebriated and his thought process was not working properly. Additionally, he was only 17 and did not have the life experience to know this was something he probably should not have been doing for someone else. Shortly after this happened, he went with a buddy to his hometown of Moore, OK, for the weekend. During that weekend trip, they did some partying and ending up getting arrested. A civilian friend had also been arrested for stealing a car and even though they weren't responsible for the left of the vehicle, they were still detained and placed on a military hold. By that time, they had missed their time to report back to duty and were considered absent without leave (AWOL). After a few weeks, the charges against him were dropped and he was released. He was told to report to Fort Sill, OK, and he reported there in early 1975. Once he arrived, he was put into a detention area and was then retrained as a cannoneer in the AIT school. After graduating there, he went to Fort Carson, CO, where for approximately six months, he had no issues and was able to perform his duties satisfactorily. b. Eventually, he crossed paths with a very intense first sergeant, and they butted heads often. He was, admittedly, young and defiant and his attitude could have been better. At times, he felt singled out by him and he remembers a particular instance when he was told he needed to stay and perform guard duty but he was defiant and told him he was leaving for the weekend and was not going to perform the duty. He left and was eventually arrested at his girlfriend's house off-post and detained. From there, he was eventually court martialed and his offenses included every minor stain on his record. Once the proceedings were completed, he was sentenced to 90 days at Fort Leavenworth, but was released early because of good behavior. From there, he was placed on excess leave to await discharge and he flew home. Finally, he was contacted in 1985, with information he had been discharged with a BCD. c. The reason he’s asking for a review after all of these years is because he is honestly ashamed of his discharge type. He is very proud of my citizenship and his country, as well as his service even if there are some minor offenses on his record. If he could do it all over again, he would in a heartbeat. His hope is that what happened when he was 17 and 18 years old doesn't define who he is for the rest of his life. 3. The applicant accepted non-judicial punishment on 20 May 1975, for being absent without authority from on or about 25 February 1975 to on or about 21 March 1975. 4. Special Court-Martial Order (SCMO) Number 113, found the applicant guilty of: * 4 specifications of failing to go at the prescribed time to his appointed place of duty * 1 specification of failing to obey a lawful order of which he had knowledge of * 1 specification of having in his possession, with intent to deceive, an individual sick slip 5. His sentence consisted of a BCD from the Army, to be confinement at hard labor for four months, forfeiture of $240.00 per month for 4 months, and reduction to the grade of private/E-1. 6. On 28 December 1976, the U.S. Army Court of Military Review found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and sentence were affirmed. 7. On 21 May 1979, the applicant was discharged. Although he was sentenced to a BCD, his DD Form 214 shows his character of service as UOTHC. He completed 4 years of net active service this period. He was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 8. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge. Chapter 11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and 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. 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 statements, and his service record, 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, his record of service, the frequency and nature of his misconduct, the court martial that led to his separation and whether to apply clemency. The Board found insufficient evidence of mitigating factors in-service for the 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 at 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 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge. Chapter 11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and 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. 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. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 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. 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) AR20190009409 4 1