ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190009621 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .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, 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.The applicant states: a.He believes his discharge should be upgraded to a general discharge underhonorable conditions because more than half of his military service was honorable. b.The Board should find it in the interest of justice to consider his applicationbecause he dramatically altered his lifestyle since his unacceptable behavior in the Army. 3.The applicant enlisted in the Regular Army on 28 November 1978.4.Headquarters, 3rd Armored Division General Court-Martial Order Number 25, dated 7 April 1981, shows the applicant was arraigned and tried before a general court-martial in Frankfurt, Germany where he was charged with and found guilty of the following:•attempting to steal by means of force and violence from Private H____ the contents of his pants pockets on 26 September 1980•stealing $20 by means of force and violence from Private C____ on26 September 1980 •unlawfully striking Specialist Four H____ on various parts of his body with his fists on 27 September 1980•committing assault upon Specialist Four I____, on 9 October 1980 by striking her on the jaw with his closed fist and open palm, thereby intentionally inflicting grievous bodily harm upon her, resulting in a fractured jaw 5.On 6 February 1981, he was sentenced to confinement at hard labor for 33 months,forfeiture of all pay and allowances, reduction in rank/grade to private/E-1, anddischarge from the service with a bad conduct discharge. 6.On 7 April 191, his sentence was approved. The approval shows: a.That portion of the sentence that provided for confinement at hard labor in excessof 20 months was suspended for 20 months, at which time, unless the suspension were sooner vacated, the excess confinement at hard labor would be remitted without further action. b.The forfeitures would apply to pay and allowances becoming due on and after thedate of this action. c.The record of trial was forwarded to the Judge Advocate General of the Army forreview by a Court of Military Review and pending completion of the appellate review, the applicant would be confined in the U.S Disciplinary Barracks, Fort Leavenworth, KS. 7.Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 385, dated 5 June 1981, suspended the sentence to forfeiture ofall pay and allowances on the condition that the applicant continued satisfactoryperformance of duty with the Food Service Division, U.S. Disciplinary Barracks, and thathe did not violate the rules of the U.S. Disciplinary Barracks or the Uniform Code ofMilitary Justice, until such time as the sentence was ordered into execution. 8.Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 795, dated 30 November 1981, states all applicable provisionshaving been complied with, the affirmed sentence, as modified, would be duly executed. 9.The applicant’s DD Form 214 shows he was discharged on 6 January 1982, underthe provisions of Army Regulation 635-200 (Personnel Separations – EnlistedPersonnel) paragraph 11-2, with a bad conduct discharge. He was credited with 1 year,11 months, and 23 days of net active service this period with lost time from 21 November 1980 through 6 January 1982. BOARD DISCUSSION: 1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests. The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct, his conviction by a General Court-martial, his separation and whether to apply clemency. The Board found insufficientevidence of in-service mitigating factors for his serious misconduct and the applicantmade a statement but provided no evidence of post-service achievements or letters ofreference in support of a clemency determination. Based on a preponderance ofevidence, the Board determined that the character of service that applicant receivedupon separation was not in error or unjust. 2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. 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): 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Chapter 11, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed.