BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20190014147 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) 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 29 July 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 served his complete tour and believes his discharge was too harsh. He needs medical assistance for a botched hernia surgery while in the service. 3. The applicant enlisted in the Regular Army on 1 April 1980. 4. The applicant's service record does not contain a separation physical; however, it does contain the following documents: a. A Standard Form (SF) 526 (Medical Record – Operation Record), showing he had an operation on 7 November 1980, to repair a recurring right inguinal hernia that had previously been repaired in 1975 at age 10. The surgeon reported "the whole procedure was very well tolerated by the patient and he was returned to the Recovery Room in satisfactory condition." b. A SF 502 (Clinical Record – Narrative Summary), showing the applicant was discharged on 12 November 1980. The surgeon stated "the patient was admitted because of recurrent right inguinal hernia. The patient was taken to Surgery the following his postoperative course was uncomplicated. His wound was healing well without any evidence of swelling. Sutures were removed on the 6th postoperative day and steri-strips were applied. The patient was discharged on 12 Nov 80. He will be followed in the Surgical Clinic." 5. The applicant accepted non-judicial punishment (NJP) on 30 April 1982, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana, on or about 2 April 1982, at Fort Carson, CO. His sentence included his reduction to the rank/grade of private (PVT)/E-1 and confinement in correctional custody for 30 days. 6. Before a special court-martial on or about 25 October 1982, at Fort Carson, CO, the applicant was convicted of larceny of U.S. Government property, between on or about 18 April and 23 April 1982. His sentence included confinement at hard labor for three months and separation from service with a BCD. Only so much of his sentence was approved on 11 January 1983, as provided for his BCD and confinement at hard labor from 25 October 1982 to 17 December 1982. The remaining hard labor was deferred on 17 December 1982 and rescinded on 11 January 1983. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. He was ordered to be retained at Fort Bragg, NC, pending completion of the appellate review. 7. The applicant accepted NJP on 2 February 1983, under the provisions of Article 15 of the UCMJ, for without authority absenting himself from the U.S. Army Personal Control Facility (USAPCF), Fort Bragg, NC on or about 4 January 1983, and remaining so until on or about 31 January 1983. 8. Special Court-Martial Order Number 17, issued by the Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC on 15 February 1984, noted that the applicant's sentence had been affirmed and ordered his BCD duly executed. 9. The applicant was discharged on 19 March 1984, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as the results of a court-martial sentence. His service was characterized as bad conduct. 10. 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. 11. The Board should consider the applicant's requests, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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, 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 of 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 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 635-200 set 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. Paragraph 3, Section IV of the version in effect at the time provided that a Soldier would be given a BCD 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, 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. 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) AR20190014147 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1