IN THE CASE OF:  BOARD DATE:  11 June 2020 DOCKET NUMBER:  AR20190009703 


APPLICANT REQUESTS:  The applicant requests an upgrade of 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 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, 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 he requests an upgrade of his discharge in order to receive hiscertificate of eligibility and to receive medical benefits for treatment of issues whichoccurred during service.

3.On 6 September 1979, the applicant enlisted in the Regular Army for a period of 4years.

4.His record contained documents that show:

.29 January 1980, he accepted non-judicial punishment (NJP) under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ) forviolating a lawful general regulation

.in July 1980, he accepted NJP under the provisions of Article 15 of the UCMJfor violating a lawful general regulation

.15 July 1980, he accepted NJP under the provisions of Article 15 of theUCMJ for disrespecting a superior noncommissioned officer (NCO)

.20 May 1982, he accepted NJP under the provisions of Article 15 of theUCMJ for failing to be at his appointed place of duty

.he was absent without leave (AWOL) from 21 to 28 May 1982



5.On 9 July 1982, the applicant was arraigned, tried and convicted by a special court-martial.  He pleaded guilty and was found guilty of:

.being AWOL from on or about 21 to 28 May 1982

.willfully disobeying his superior NCO on 3 occasions

.attempting to escape lawful custody on 2 occasions

.unlawfully striking another Soldier

.unlawfully striking 2 NCOs

.assaulting another Soldier

.breaching restraint imposed by leaving the limits of the Correctional CustodyFacility without proper authority

.wrongfully having in his possession marijuana



6.The applicant’s sentence consisted of discharge from the Army with a bad conductdischarge; confinement at hard labor for 4 months; forfeiture of $200.00 dollars permonth for 4 months; and reduction to pay grade E-1.

7.On 11 August 1982, the sentence was approved.  The record of trial was forwardedto The Judge Advocate General of the Army for review by a Court of Military Review.Pending completion of appellate review, the accused would be confined in theInstallation Detention Facility, Fort Campbell, Kentucky or elsewhere, as competentauthority may direct.

8.On 23 August 1982, a Personnel Action shows the applicant’s duty status waschanged from present for duty to confined military authorities.

9.On 25 December 1982, the applicant was placed on excess leave without pay.

10.On 29 December 1982, the United States Army Court of Military Review affirmedand approved the applicant’s findings of guilty and the sentence.

11.On 27 April 1983, after completion of appellate review, Special Court-Martial OrderNumber 47 announced the applicant’s sentence had been affirmed and ordered dulyexecuted.

12.On 6 May 1983, the applicant was discharged as a result of court-martial.  His DDForm 214 shows his character of service was listed as “bad conduct discharge”.  Hecompleted 3 years, 5 months, and 25 days of net active service and he had lost timefrom 19 to 27 May 1982 and 23 August to 18 October 1982.  The applicant was notawarded a personal decoration.

13.In accordance with Army Regulation (AR) 635-200 (Personnel Separations –Enlisted Personnel), a Soldier will be given a bad conduct discharge pursuant only to anapproved sentence of a general or special court-martial.  The appellate review must becompleted and the affirmed sentence ordered duly executed.

14.Title 10, Section 1552, United States Code states that the Army Board forCorrection of Military Records can only review records of court-martial and relatedadministrative records to correct a record to accurately reflect action taken by reviewingauthorities under the Uniform Code of Military Justice (UCMJ) or to take clemencyaction.  The law does not permit any redress by this Board which would disturb thefinality of a court-martial conviction.  The Board is empowered to address thepunishment and/or the characterization of service resulting from a court-martialconviction.  The Board may elect to change the punishment and/or the characterizationof service if clemency is determined to be appropriate.  Clemency is an act of mercy, orinstance of leniency, to moderate the severity of the punishment imposed.

15.AR 635-200 provides for the separation of enlisted personnel.  The regulationstates:

a.An honorable discharge is a separation with honor.  The honorablecharacterization 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.An under other than honorable conditions discharge is an administrativeseparation from 'the service under conditions other than honorable. 

16.Entitlement to Veterans Administration benefits is neither within the purview of thisBoard nor is it normally considered a basis for granting relief; however, in reaching itsdetermination, the Board can consider the applicant's petition, his service record, andhis 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 dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct, the outcome of a court martial and
the reason for his separation.  The Board found insufficient in-service mitigation for the serious nature of 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.  The Board concurred with the correction stated in the Administrative Note(s) below. 

2.After reviewing the application and all supporting documents, the Board found reliefwas not warranted.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XX :XXX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, except for the correction stated in the Administrative Note(s) that follow, 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): 

In accordance with AR 600-8-22, para 2-22, dated 5 March 2019, the applicant’s documented service meets the criteria for and entitles him to award of the Korea Defense Service Medal.  The KDSM should be administratively added to his DD Form 214 for the period of service ending 6 May 1983. 

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.Title 10, Section 1552, United States Code states that the Army Board for Correctionof Military Records can only review records of court-martial and related administrativerecords to correct a record to accurately reflect action taken by reviewing authoritiesunder the Uniform Code of Military Justice (UCMJ) or to take clemency action.  The lawdoes not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or thecharacterization of service resulting from a court-martial conviction.  The Board mayelect to change the punishment and/or the characterization of service if clemency isdetermined to be appropriate.  Clemency is an act of mercy, or instance of leniency, tomoderate the severity of the punishment imposed.

3.In accordance with AR 635-200 (Personnel Separations – Enlisted Personnel), aSoldier will be given a bad conduct discharge pursuant only to an approved sentence ofa general or special court-martial. The appellate review must be completed and theaffirmed sentence ordered duly executed.

4.AR 635-200 provides for the separation of enlisted personnel.  The regulation states:

a.An honorable discharge is a separation with honor.  The honorablecharacterization 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

 c.  An under other than honorable conditions discharge is an administrative separation from 'the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service.    
 
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.        
 
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