IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20190013801 APPLICANT REQUESTS: a. Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR2004101381 on 9 September 2004. Specifically, he requests his bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. b. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 December 1986, to show he was separated in January 1986 instead of December 1986. 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 14 August 2019 * DD Form 214, for the period ending 16 December 1986 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2004101381 on 9 September 2004. 2. The applicant states, in effect, that he is respectfully requesting an upgrade due to the circumstances that caused his discharge and the impact it has had on his life. He joined the military to serve his country and to help provide for his siblings, who were being raised by his grandmother. He went absent without leave (AWOL) to help take care of his terminally ill grandmother and siblings. He notified his commander; however, his leave was denied. He was the only one that could care for his handicapped brother and 13 year old sister. He wanted to continue to serve but was not afforded the opportunity. His original expiration term of service (ETS) date was in March 1986 but due to his discharge, he was released prior to that date. 3. The applicant enlisted in the Regular Army on 16 March 1983. 4. Before a special court martial on or about 12 December 1985, at Fort Benning, GA, the applicant was found guilty of being AWOL from on or about 27 September 1985 to on or about 18 November 1985; from on or about 1 July 1985 to on or about 13 August 1985; and from on or about 14 August 1985 to on or about 25 September 1985. The court sentenced him to confinement for four months, forfeiture of $426.00 pay per month for four months, and separation from service with a BCD. The sentence was modified and approved on 14 February 1986, except for that part extending to his separation from service with a BCD. The record of trial was forwarded to the U.S. Army Court of Military Review for its appellate review. 5. The applicant signed a DA Form 31 (Request and Authority for Leave) on 24 January 1986, for the purpose of excess leave (creditable for all purposes except pay and allowances). The applicant was retained in the service from on or about 24 January 1986 through on or about 16 December 1986, for the completion of his appellate review and for the convenience of the Government. 6. Special Court-Martial Order Number 64, issued by U.S. Army Infantry Center and Fort Benning, Fort Benning, Georgia on 5 December 1986, noted that the applicant's sentence had been finally affirmed and ordered the BCD executed. 7. The applicant was discharged on 16 December 1986, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. The DD Form 214 he was issued confirms his service was characterized as bad conduct. 8. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 9 September 2004, determined he was properly discharged, and denied his request for relief 9. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 11. The applicant contends his DD Form 214 should show he was discharged in January 1986 instead of December 1986. The applicant was retained in service from on or about 24 January 1986 to on or about 16 December 1986, for Court-Martial proceedings and for the convenience of the Government. BOARD DISCUSSION: 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, there was insufficient evidence to support the applicant’s statements, and there was insufficient post-service evidence to justify a clemency determination to provide an honorable discharge. However, the Board found the character of service of a bad conduct discharge to be inequitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge, but did find basis for clemency to upgrade the applicant’s bad conduct discharge to an under other than honorable discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged on 16 December 1986 with an under other than honorable character of service discharge. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains an honorable discharge. 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 sets 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. Chapter 3 provided that an enlisted person would be given a bad conduct discharge 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, USC, 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) AR20190013801 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013801 5 ABCMR Record of Proceedings (cont) AR20190013801 4