IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20190013496 APPLICANT REQUESTS: His dishonorable discharge 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 9 August 2019 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, in effect, he served from June 1974 until May 1980; he was a supply sergeant from November 1979 through May 1980, with outstanding performance reports. He was promoted to the rank/grade of sergeant (SGT)/E-5. He left the service in May 1980, after the death of his father. He reentered the military in November 1981, in the rank/grade of specialist four (SP4)/E-4, after dealing with low paying civilian jobs. His service was outstanding until March 1984, when he was court-martialed for a civilian crime that resulted from his lack of self-control. 3. The applicant enlisted in the Regular Army on 24 June 1974 and was honorably discharged on 30 May 1977 for the purpose of immediate reenlistment. 4. The applicant reenlisted in the Regular Army on 31 May 1977. He served in the Republic of Korea from 29 November 1977 through 15 November 1978 and attained the rank/grade of SGT/E-5. He was honorably discharged on 30 May 1980. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was credited with completing three years of active service this period and two years, 11 months and seven days of prior active service. 5. Following a break in service, the applicant enlisted in the Regular Army on 17 November 1981. 6. Before a general court-martial on or about 17 July 1984, at Manheim, Federal Republic of Germany, the applicant was convicted of the following offenses: a. Involuntary manslaughter of another Soldier while perpetrating an assault and battery, and concealing his body, on or about 18 March 1984. b. Committing sodomy on a child under sixteen years of age, by force and without consent, on or about 15 April 1984. c. Unlawfully confining a child, by tying his hand with a clothesline, placing tape over his mouth and locking him in the basement of a building, on or about 15 April 1984. d. Committing indecent, lewd, and lascivious acts upon the body of a male under sixteen year of age, to satisfy his sexual gratification on diverse occasions between on or about 1 September 1983 and on or about 1 March 1984. 7. The applicant's sentence included confinement at hard labor for 18 years, reduction to the grade of E-1, and separation from service with a dishonorable discharge. His sentence was approved on 27 November 1984 and was ordered executed, except for that part of the sentence extending to the dishonorable discharge. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 8. The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's case on 4 March 1985. 9. The applicant submitted a Petition for Grant of Review in the U.S. Court of Military Appeals on 12 March 1985. The U.S. Court of Military Appeals denied his request on 8 May 1985. 10. General Court-Martial Order Number 128, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS on 5 June 1985, noted that the applicant's sentence had been finally affirmed and ordered his dishonorable discharge duly executed, with continued confinement at the U.S. Disciplinary Barracks. 11. The applicant was discharged on 3 July 1985, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as the results of a court-martial sentence. His service was characterized as dishonorable. 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 should consider the applicant's requests, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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 635-200 set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a provides that 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. Paragraph 3-7b 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. c. Paragraph 3, Section IV of the version in effect at the time provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 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. 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) AR20190013496 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1