BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20190013981 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 because he served his country and after he was forced to take a shot of an unknown substance, he still served his country. 3. On 19 February 1985, the applicant enlisted in the Regular Army for a period of 3 years. 4. His record shows: * he was absent without leave (AWOL) from 25 July to 1 September 1986, 4 September 1986 to 5 January 1987, and 1 to 7 June 1987 * he was in confinement from 6 January to 18 May 1987 5. On 24 July 1986, the applicant received non-judicial under the provisions of Article 15 of the Uniform Code of Military Justice for threatening to kill another Soldier; assaulting a Soldier by pointing a knife in his face; willfully disobeying a lawful order from a noncommissioned officer; and disrespecting a noncommissioned by saying to him “take off your stripes and I’ll kick your ass”. His appeal was denied. 6. On 9 March 1987, he was arraigned, tried, and convicted by a special court-martial. He was found guilty of: * being AWOL from on or about 25 July to 2 September 1986, and 4 September 1986 to 6 January 1987 * disobeying a “lawful order” [lawful command] from lieutenant colonel F to report to confinement, by wrongfully fleeing to avoid being taken to confinement * using provoking words by threatening to kill another Soldier with a knife 7. The applicant’s sentence consisted of 5 months confinement and to be discharged from the Army with a bad conduct discharge. 8. On 14 April 1987, his sentence was approved, and except for the part of the sentence extending to a bad conduct discharge, would be executed. 9. On 1 June 1987, the applicant was ordered to report to the U.S. Army Personnel Control Facility (PCF), Fort Knox, KY. Personnel Action forms show the applicant failed to report on the prescribed reporting date to the PCF. He surrendered to military authorities at Fort Knox, KY on 8 June 1987. The applicant did not desire a separation medical examination. 10. On or about 9 June 1987, the applicant was placed on excess leave pending appellate review of his bad conduct discharge. 11. On 16 September 1987, the Court of Military Review affirmed the approved findings of guilty and the sentence. 12. On 24 February 1988, after completion of post-trial and appellate review, Special Court-Martial Order Number 42 announced the applicant’s sentence to a bad conduct discharge had been affirmed and ordered executed. 13. On 31 March 1988, the applicant was discharged as a result of court-martial with a bad conduct discharge. His DD Form 214 also shows he completed 2 years, 3 months, and 13 days of net active service. He had lost time from 25 July to 1 September 1986, 4 September 1986 to 18 May 1987, and 1 to 7 June 1987. He was not awarded a personal decoration. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 15. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), set forth the basic authority for the separation of enlisted personnel. The regulation states a Soldier was 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. 16. 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: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Furthermore, the applicant stated that there was only one incidence of misconduct, but the record does not support that contention. The Board agreed that the applicant’s discharge characterization is appropriate. 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 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 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), set forth the basic authority for the separation of enlisted personnel. The regulation provides a Soldier was 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. a. 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. b. 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) AR20190013981 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013981 5 ABCMR Record of Proceedings (cont) AR20190013981 4