BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190012589 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 June 2019, with self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 19 October 1981 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 he believes the BCD was unduly harsh for the circumstances involved. a. His mother became seriously ill and could not work; his father was a disabled veteran who also could not work. They had bought a house. As the result of his mother's inability to work, she lost her income and was going to lose her home. He became very distraught and upset about his mother's situation and made a foolish and serious mistake. b. The opportunity to steal money orders and convert them to cash to help her out became available and he did it. The person he stole the money orders from received all of their money back and he apologized but was sentenced to 90 days in jail. He paid his dues and after jail time, returned to serve with his unit at Fort Sill, Oklahoma. c. In time, his mother became more seriously ill and could not take care of herself. He requested and received the use of the 10 days of leave he had left. When the leave period was up, he did not think he should leave his mother until she got better. He called his first sergeant and was told he had to come back without further leave. He admits to having remained absent for 49 days past the expiration of his leave time. His sergeant and others were extremely upset with him and he was court-martialed and given a BCD. d. At the time he was 19 years old, very immature, and did not know how to handle things. He did not make a good impression at the court-martial. He does not disagree with being discharged because at that age, he was a smart-aleck and argued with them. Someone told him later they gave him the BCD to make sure he could never re-enter the Army. Obviously he didn't want to go back in to the Army. e. He believes the BCD was harsh and unreasonable considering his immaturity and the traumatic stress he was experiencing because of his mother's situation. He is 57 years old and has not committed any crimes since that event with the money orders. He is always honest with people that he talks to about jobs and some won't hire him when he tells them he received a BCD. 3. The applicant enlisted in the Regular Army on 1 August 1979. 4. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. The record is also void of a record of the court-martial charges, findings, or sentence or any processing documents related to the reported period of absence without leave (AWOL). 5. An undated DA Form 4430-R (Trial Counsel – Report of Trial) shows the applicant was charged with larceny; however, no specifics of the charge are included on the form. 6. A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 14 May 1981, show the applicant was placed on excess leave pending an appellate review of the sentence that included his separation from service with a BCD. 7. The U.S. Army Court of Military Review affirmed the findings and sentence of a special court-martial on 26 June 1981. The affirmation notice does not include any specifics of the charges. 8. Special Court-Martial Order Number 122, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma on 5 October 1981, shows that a 3rd Armored Division Special Court-Martial, adjudged on 9 March 1981, found the applicant guilty (unspecified) charges and sentenced him to reduction to private/E-1, 60 days confinement, forfeiture of $250.00 pay for four months, and separation from service with a BCD (Special Court-Martial Order Number 30, dated 6 May 1981). These orders further note that the sentence had been affirmed after appellate review and ordered the BCD duly executed. 9. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows the applicant was: * confined in the Army Correctional Facility, Germany from 9 March 1981 to 18 March 1981 * confined at the U.S. Disciplinary Barracks Fort Leavenworth , KS from 19 March 1981 to 27 April 1981 * placed on excess leave on 1 September 1981 10. The applicant was discharged on 19 October 1981. The DD Form 214 he was issued shows he was discharged under the authority of Special Court-Martial Order Number 122, dated 5 October 1981, and his service was characterization as BCD. 11. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 12. 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. 13. The Board may consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the relatively short term of honorable service completed prior to criminal misconduct which led to the applicant’s separation, the Board concluded that there was insufficient evidence of an error or injustice which would warrant a change to the characterization of service. 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. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier will be given a BCD only pursuant to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 4. 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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// ABCMR Record of Proceedings (cont) AR20190012589 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012589 6 ABCMR Record of Proceedings (cont) AR20190012589 4