BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20190013974 APPLICANT REQUESTS: in effect, * reconsideration of his previous request to upgrade his bad conduct discharge (BCD) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) 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 AR20120012706 on 29 January 2013. 2. The Board previously found that the applicant's discharge proceedings were conducted in accordance with law and applicable regulations in effect at the time. 3. The applicant states, in effect, * everything in his record is true * he wants to apologize to his country and the President of the United States for his disrespect * he was young, foolish and made bad choices * he was a great trumpet player in high school but his life fell apart after his girlfriend lost their child so he joined the Army to get away * he brought his personal problems with him to the military * he is currently an ordained minister, he has earned his Master's Degree, and he has completed 5 units of Clinical Pastoral Training (Chaplain) * the type of separation he received is preventing him from receiving any help * he contends that he would have completed his term of service but he was unaware that he needed to return to his unit after his court-martial * he now understands the 370 days of excess leave * he contends that he never received a letter or a call from the U.S. Army to come back to his unit * he asks for forgiveness for the embarrassment he caused to the U.S. Army, his country, and the President of the United States 4. The applicant's military record is not available for review. The evidence discussed in this Record of Proceedings was taken from the original case under reconsideration. 5. The applicant enlisted in the Regular Army on 16 August 1977. He was approximately 19 years of age at the time of enlistment. 6. He received nonjudicial punishment under Article 15, Uniform Code of Military Justice on six occasions for various offenses, which included being absent from his place of duty, failing to go to his appointed place of duty, disobeying a lawful order from a noncommissioned officer (NCO), and failing to obey a general order. 7. His DA Form 2-2 (Record of Court-Martial Conviction) shows that while assigned to Fort Ord, CA, the applicant was convicted by: a. Summary Court-Martial for disobeying a lawful order from a NCO to prepare his equipment and go the field location, failing to go to his appointed place of duty (physical training), leaving his place of duty without authorization, failing to go to orderly room. He was sentenced to 30 days of hard labor, and reduction from private (PV2) to private (PV1). His sentence was adjudged and approved on 31 January 1979. b. Special Court-Martial for failure to repair, being disrespectful, two specifications of disobeying a senior officer, two specifications of disobeying a NCO, and two specifications of assault and battery. He was sentenced to 2 months hard labor, forfeiture of $75.00 per month for 4 months, and a BCD. The sentence was adjudged on 29 June 1979 and approved on. 8. The applicant was discharged on 21 August 1980. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations- Enlisted Personnel), Chapter 3, as a result of court-martial, and his service was characterized as bad conduct. It also shows at the time of his discharge he completed 1 year, 10 months, and 6 days of creditable active military service. He had lost time from, with 370 days of excess leave. 9. On 28 December 1984, the Army Discharge Review Board denied the applicant's request to upgrade his discharge. 10. The applicant did not provide medical documentation or witness statements in support his mental/behavioral health at the time of separation. 11. The Board should consider the applicant's statements the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 12. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: 1. The Board determined the available evidence is 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 (circumstances regarding the period of AWOL), 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 corroborating his post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 : :X :X :X 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 AR20120012706, dated 29 January 2013. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Under the provisions of 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. 3. Army Regulation 635-200 (Personnel Separations Enlisted Personnel sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or a BCD. It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed. b. 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. c. 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. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR - a. Begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. In its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013974 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1