BOARD DATE: 30 March 2020 DOCKET NUMBER: AR20190014046 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC83-00669 on 2 February 1983. Specifically, he requests his bad conduct (BCD) discharge be upgraded to an honorable discharge 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 3 September 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 May 1982 * four third-party letters in support 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 AC83-00669 on 2 February 1983. 2. The applicant states that while in Germany, he was tried for assault. His initial sentence to confinement for five years was reduced to two years on appeal and he only served 14 months. It was his first offense and he has been a model citizen since his discharge. 3. The applicant enlisted in the Regular Army on 5 June 1979. 4. The applicant accepted nonjudicial punishment (NJP) on 1 August 1980, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for possession of a drug pipe with residuals of hashish, on or about 8 July 1980. 5. Court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 6. General Court-Martial Order Number 65, issued by Headquarters, VII Corps on 22 July 1981, shows the applicant was found guilty of assault and battery of a child under the age of 16 and of attempted rape of a second child under the age of 16. The recommended sentence was confinement for five years, forfeiture of $250.00 pay per month for 60 months, and separation from service with a BCD. 7. The General Court-Martial Convening Authority approved the findings and sentence on 22 July 1981, except he reduced the periods of confinement and forfeiture of pay to two years. The record of trial was referred to the U.S. Army Court of Military Review for appellate review. 8. The US Army Court of Military Review affirmed the findings and sentence as approved on 21 December 1981. 9. General Court-Martial Order, issued by on 16 April 1982, noted that the applicant's sentence had been affirmed and ordered the applicant's sentence to be duly executed. 10. The applicant was discharged on 14 May 1982. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 11-2, as a result of court-martial. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and his service was characterized as bad conduct. 11. The ABCMR previously denied the applicant's request for an upgrade on 2 February 1983. The denial was based on the findings that the court-martial and subsequent discharge were free from errors and in conformance with law. Due to the serious nature of the offenses, it was determined that the sentence was appropriate and there did not appear to be a basis to grant the applicant's request. 12. The applicant provides four letters of reference in his behalf. All of the letters state the authors have known the applicant for many years and describe him as an honest, hardworking (until physical disabilities prevented him from further work), church going man. He is a good husband, father, and friend willing to help wherever and whenever he can. 13. Court-Martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with 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. 14. The Board should consider the entirety of the applicant's service record and his statements in light of the current published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records 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, the charges against him, the outcome of a General Court-Martial and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct; the Board considered the letters of reference he provided, but considering the misconduct, found them insufficient to support 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 15-185 (ABCMR) 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 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. This regulation provided that: a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier will be given a BCD only pursuant to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 4. Court-Martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with 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. 5. 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) AR20190014046 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014046 6 ABCMR Record of Proceedings (cont) AR20190014046 4