IN THE CASE OF: BOARD DATE: 18 February 2020 DOCKET NUMBER: AR20190013278 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade 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 214 (Certificate of Release or Discharge from Active Duty) * Military Pay Voucher * Character reference letters from his family and Bishop * Legal Service Agency letter * Certificate of Appreciation * Reassignment Orders 171-108 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050016198 on 11 July 2006. 2. The applicant states because of his benefits he is requesting a discharge upgrade. He is a single parent and his son is in his last year of college. He would like to buy a house or condo for him and his son. He has been a model citizen since being discharged. He made some bad decisions and immature mistakes in his youth. He did not use good judgement. He is not a felon and has been petitioning for an upgrade of his discharge for more than 30 years. His son states he does not know where he would be today if it was not for his father. 3. On 7 October 1981, at the age of 28 years old, the applicant enlisted in the Regular Army for a period of 4 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 67U (medium helicopter repairman). 4. On 14 June 1984, in accordance with his pleas, the applicant was convicted by a special court-martial of attempting to distribute marijuana in the hashish form and altering a check with intent to defraud. He was sentenced to be reduced to E-1, a forfeiture of $150 pay per month for 2 months, to be confined at hard labor for 45 days, and to be discharged from the service with a bad conduct discharge. On 6 July 1984, the convening authority approved the sentence. 5. On 12 September 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 6. On 7 December 1984, the bad conduct discharge was ordered to be executed. 7. Accordingly, the applicant was discharged on 8 January 1985 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He was issued a bad conduct discharge. He had served 3 years, 1 month and 26 days of total active service with 34 days of lost time due to confinement. 8. On 16 March 1988, the Army Discharge Review Board (ADRB) notified the applicant that his request for an upgrade of his discharge to that of a general or honorable discharge was denied. 9. On 11 July 2006, the ABCMR notified the applicant that his request for an upgrade of his discharge was denied. 10. In support of his case, the applicant provided a military pay voucher, legal service agency letter, reassignment orders, and a Certificate of Appreciation. He also provides character reference letters, and correspondence from his church bishop stating in pertinent part: * the applicant is a very outgoing, charismatic, loving and trustworthy person * he is extremely involved in the lives and activities of his grandchildren, and often volunteers at their schools * the applicant has an rapport with everyone and connects with people of all ages * he is dedicated member of the church, “please for him” 11. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 12. Section 1552, Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action. The law does 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 the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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 ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can 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 documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant’s record of service, the frequency and nature of the misconduct, the court martial findings and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the serious misconduct. The Board considered the applicant’s statement and letters of reference, but found them insufficient to support a clemency determination. Based upon a preponderance of evidence, to include the misconduct leading to the applicant’s separation, the Board concluded 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 : : : 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Paragraph 3-7, provides that 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. 2. Title 10, United States Code, section 1552, as amended does 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 the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013278 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1