BOARD DATE: 2 October 2020 DOCKET NUMBER: AR20200002294 APPLICANT REQUESTS: The applicant requests an upgrade of his dishonorable discharge to a general, under honorable conditions discharge. 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) * U.S. Army Certifications of Military Service for the periods ending 30 October 1979 and 1 August 1982 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: a. Since he could remember growing up as a little boy, he aspired to join the Army. He had two uncles who served in Vietnam and two brothers to enlist before him. His older brother is a Vietnam era veteran. His opportunity came in November 1976. The day of his enlistment was the happiest day of his life. He went into the Quarter Master Corps, as a Food Service Specialist. He enjoyed food service, but his dream was also to become a truck driver as an additional duty. He was a truck driver for the company mess hall in Germany. b. Being a country boy from a very small town with a population of 342, employment did not exist. The Army gave him a meaningful future, and he loved the Army. He served with honor and total respect for his superiors and fellow Soldiers. They were Army strong. It was always his plan to retire, but his dreams were derailed in view of his court-martial and ultimate confinement. He did not see it coming and was blinded by love. c. He served more than 10 years in [confinement at] Fort Leavenworth, KS, and was paroled his very first hearing. He was released back into society to be a law abiding citizen. Since his release he married, has a daughter, and he is a college graduate. He is a home owner and is gainfully employed. He has had no traffic or reported infractions of any kind in more than 25 years. He learned his lesson, and now he is a grandfather. He had 7 years, 7 months, and 1 day of active duty, minus the time lost. It takes 120 days of active duty to earn benefits. He is praying for an upgrade of his discharge (DD Form 214) that will allow him to receive benefits. God knows he has more than enough active duty. Lastly, but most importantly, he wants to thank the Board for this opportunity, and he is thanking the Board in advance for favorable consideration and approval in the most important matter. 3. On 10 November 1976, the applicant enlisted in the Regular Army for a period of 3 years. 4. His record contained U.S. Army Certifications of Military Service that show he was honorably discharged from the Regular Army on 30 October 1979 and 1 August 1982. He also immediately reenlisted for a period of 3 years on 31 October 1979 and 2 August 1982. 5. On or about 12 December 1980, his Personnel Qualification Record shows he was assigned to Germany as a Cook. 6. On 23 September 1982, an Investigating Officer notified the applicant that he would be conducting an investigation pursuant to Article 32b of the Uniform Code of Military Justice (UCMJ), to investigate the facts and circumstances concerning charges preferred against the applicant by Captain JWF. The charge was rape, a violation of Article 120 of the UCMJ. 7. On 2 December 1982, the applicant was arraigned, tried, and convicted by general court-martial. He was found guilty of violating Article 120 (rape) and Article 128 (assault) of the UCMJ. He was sentenced to a “dishonorable discharge from the Army,” to be confined at hard labor for 25 years, to total forfeiture, and to be reduced to the lowest enlisted grade of private (E-1). 8. On 19 February 1983, the general court-martial convening authority approved his sentence. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 9. On 23 December 1983, the U.S. Army Court of Military Review affirmed the applicant's findings of guilt and determined the sentence was correct in law and fact. 10. On 11 January 1984, the applicant was advised of the decision of the U.S. Army Court of Military Review. He was notified he had 60 days from the date he was notified of the decision to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law. On the same date, he requested the Court direct The Judge Advocate General to designate a lawyer to represent him. 11. On 22 May 1984, General Court-Martial Order Number 416 announced the applicant’s sentence had been affirmed and the appellate review process was completed. His sentence to a dishonorable discharge was ordered executed. 12. On 11 June 1984, the applicant was separated as a result of court-martial with a dishonorable discharge. His DD Form 214 showed, he: * completed 23 days of net active creditable service this period, with lost time from 25 August 1982 to 11 June 1984 * was awarded or authorized the Army Good Conduct Medal; Army Service Ribbon; Marksmanship Qualification Badge with M-16 Rifle Bar * had 5 years, 8 months, and 22 days total prior active service 13. 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. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provided that, a member would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 15. 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: 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 insufficient 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 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation states: a. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. A member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be 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) AR20200002294 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002294 6 ABCMR Record of Proceedings (cont) AR20200002294 5