IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20190013804 APPLICANT REQUESTS: The applicant requests upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Army Discharge Review Board) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 was asked to come back on active duty before being discharged. 3. The applicant's service records show: a. On 15 July 1976, the applicant enlisted into the Regular Army. On completion of initial training, orders assigned him to Germany; he arrived in Germany on 3 December 1976. On 6 February 1979, while still assigned in Germany, the applicant immediately reenlisted for 4 years; his new expiration term of service (ETS) date was 5 February 1983. He completed his tour in Germany on 10 July 1979, and orders reassigned him to Fort Jackson, SC; he arrived at Fort Jackson on 16 August 1979. b. On 3 June 1981, Permanent Orders (PO) awarded him the Driver and Mechanic Badge with Driver-W (wheeled vehicle) Component Bar for the period April 1980 to April 1981. Effective 1 July 1981, the applicant's chain of command promoted him to specialist five (SP5)/E-5. On 27 September 1982, the applicant extended his 6 February 1979 enlistment by 36 months; the extension adjusted his ETS to 5 February 1986. c. On or about 1 July 1982, the applicant's leadership finalized a DA Form 2166-6 (Enlisted Evaluation Report (EER)) for the rating period 7908 through 8206; the applicant's rater and indorser gave the applicant a maximum score of 125. d. Orders reassigned the applicant to Germany, and he arrived on 27 January 1983. Between February 1983 and February 1984, the applicant's leadership executed two EERs; both reports showed the applicant's raters and indorsers gave him maximum scores (125). e. On 30 January 1985, consistent with the applicant's pleas, a general court-martial convicted the applicant of two Uniform Code of Military Justice (UCMJ) violations. (1) The court found the applicant guilty of wrongfully distributing 9 grams of hashish and wrongfully possessing 3.9 grams of hashish with the intent to distribute. (2) The court sentenced the applicant to a bad conduct discharge, reduction from SP5 to private/E-1, 9 months' confinement and total forfeitures of all pay and allowances. On 10 April 1985, the convening authority approved the applicant's sentence and directed the execution of all but the bad conduct discharge, pending appellate review. f. On 30 July 1985, the U.S. Army Court of Military Review affirmed the trial court's findings of guilt and the applicant's sentence. On 15 November 1985, a general court- martial order acknowledged the completion of the appellate process and directed the execution of the applicant's bad conduct discharge; the applicant was discharged accordingly on 4 December 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years, 2 months, and 17 days of his 7-year reenlistment contract. He was awarded or authorized: * Army Good Conduct Medal (2nd Award) * Army Service Ribbon * Army Achievement Medal (2nd Award) * Overseas Service Ribbon * Marksmanship Qualification Badge with Rifle Bar (M-16) * Noncommissioned Officer Development Ribbon * Expert Field Medical Badge 4. The applicant contends he was asked to come back on active duty before being discharged. a. Court-martial convictions stand as adjudged or modified by appeal through the judicial process; the Board is not empowered to set aside a conviction. The Board's corrections may extend only to those actions taken by reviewing authorities under the UCMJ or, for the purposes of clemency, to the court-martial's sentence. b. 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: 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: 1. 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 bad conduct character of service for the period of service ending 4 December 1985 for the individual concerned. 2. As an administrative action, the Board recommends that applicant’s DD Form 214 for the period ending 4 December 1985 all be corrected by executing the actions described in Administrative Note(s) below. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. A review of his records provides pertinent information that, according to the version of AR 635-8 that is currently in effect, his DD Form 214 is missing a mandatory comment regarding his continuous honorable service; this entry is required for all Soldiers separated with a less than honorable character of service, and for whom their records confirm they had period(s) of honorable service. In addition, his records show PO awarded him the Driver and Mechanic Badge with Driver-W (wheeled vehicle) Component Bar. 3. As a result, amend his DD Form 214, ending 4 December 1985, by adding the Driver and Mechanic Badge with Driver-W Component Bar and, to item 18 (Remarks), add the comment: "Continuous Honorable Active Service from 15 July 1976 to 5 February 1979." REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 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. 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. 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) AR20190013804 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013804 5 ABCMR Record of Proceedings (cont) AR20190013804 4