IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190013542 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his bad conduct discharge (BCD), and to appear at a hearing at no expense to the Government before a traveling panel closest to Miami, Florida. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR2003097263 on 10 June 2004. 2. The applicant states: a. He believes he has suffered long enough with this bad conduct discharge. He believes the military has missed out on a great opportunity to have him assist this country. He has not been in any trouble since then. b. He does believe he would have made a good drill sergeant had this not happened. He does believe he would have been a good recruiter. He convinced his son to go in the military and he is serving the country now. He wrote that he had submitted a police record and some of his accomplishments from his job (the documents were not available). c. His hope is that he could get his discharge changed so he could benefit from it. He also states that maybe he could assist the military in some way by getting young men and women to join. His daughter is considering the Air Force. 3. On 26 July 1979, the applicant enlisted in the Regular Army for a period of 4 years. 4. His record contained documents that show: a. On 26 August 1982, the applicant was arraigned and tried by special court- martial for possessing and selling marijuana on 27 and 30 April 1982. He was found guilty and sentenced to confinement at hard labor for 3 months, forfeiture of $367.00 pay per month for 3 months, reduction to private/E-1, and a BCD. He was confined at the United States Army Retraining Brigade, Fort Riley, Kansas. b. On 14 October 1982, the applicant's sentence was approved. On 26 October 1982, the applicant's chain of command recommended that he be placed in a status of involuntary excess leave pending completion of appellate review. c. On 27 October 1982, he indicated he did not desire a separation medical examination. d. On 29 October 1982, the Staff Judge Advocate noted that the applicant's chain of command recommended that he be released from confinement 15 days early and that he be placed in an involuntary excess leave status and also recommended that the remaining 7 days confinement be remitted, effective 3 November 1982. e. On 26 July 1983, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. f. On 14 February 1984, the sentence, having been affirmed by the Court of Military Review, was ordered to be executed. 5. On 27 February 1984, the applicant was discharged with a bad conduct discharge pursuant to his sentence by special court-martial. He was credited with 4 years, 4 months, and 27 days of creditable military service and 482 days of lost time. 6. On 25 February 1986, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. 7. On 10 June 2004, the ABCMR denied the applicant’s request for an upgrade of his bad conduct discharge. 8. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3, of that regulation, then in effect, provided, in pertinent part, for separation of personnel with punitive discharges. It provides that a Soldier will be given a BCD pursuant to an approved sentence of a general court-martial or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 9. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process. The Board 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. 10. Army Regulation 15-185 (ABCMR), the regulation that governs and prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, the regulation states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 11. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board determined the available records are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference corroborating his statement in his application in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2003097263, dated 10 June 2004. 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 that regulation, then in effect, provided, in pertinent part, for separation of personnel with punitive discharges. It provides that a Soldier will be given a BCD pursuant to an approved sentence of a general court-martial or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process. The Board 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. 3. Army Regulation 15-185 (ABCMR), the regulation that governs and prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 4. 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) AR20190013542 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013542 5 ABCMR Record of Proceedings (cont) AR20190013542 4