IN THE CASE OF: BOARD DATE: 13 September 2021 DOCKET NUMBER: AR20210008909 APPLICANT REQUESTS: An upgrade of his bad conduct discharge (BCD). 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 14 October 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 January 1982 * three third-party letters of support 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 had a substance abuse issue while in the service. There was a sergeant in his company who harassed and humiliated him. The sergeant used to try his best to demoralize and humiliate him in front of the rest of the Soldiers. The sergeant finally got him to a point where he did not want to show up because he was afraid he would lose his temper and assault the sergeant. He has changed his life and is now a sound and respected member of the community. He would now like to clean up his military record. 3. The applicant enlisted in the Regular Army on 16 January 1979. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 18 January 1980, for disobeying a lawful order from a noncommissioned officer, on or about 3 January 1980, and for dereliction of duty by failing to report to his place of duty, on or about 3 January 1980 * on 1 April 1980, for disobeying a lawful order from a commissioned officer, on or about 24 March 1980 * on 16 May 1980, for failing to go to his place of duty, on or about 2 May 1980 * on 19 May 1980, for failing to go to his place of duty, on or about 16 May 1980, and for using disrespectful language toward a staff sergeant, on or about 16 May 1980 * on 15 July 1980, for failing to go to his place of duty, on or about 24 June 1980, and for failing to go to his place of duty, on or about 24 June 1980 5. A bar to reenlistment was initiated on 20 May 1980, based on the applicant's first three instances of NJP. The bar also indicated the applicant had six counseling statements for his inability to get up on time and to report to his place of duty on time. The applicant refused to sign the bar action. 6. Court-martial charges were preferred against the applicant on 8 December 1980, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) during the following four periods: * from on or about 14 August 1980 until on or about 3 September 1980 * from on or about 26 September 1980 until on or about 30 September 1980 * from on or about 6 October 1980 until on or about 5 November 1980 * from on or about 6 November 1980 until on or about 20 May 1981 7. Before a special court-martial on or about 20 May 1981, the applicant was found guilty of four specifications of being AWOL. His sentence included confinement for four months, forfeiture of $334.00 pay per month for four months, and separation from service with a BCD. The sentence was approved and ordered executed, with the exception of that part extending to the applicant's separation from service with a BCD. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 8. The applicant was placed on excess leave, on 20 May 1981, pending completion of his appellant review. 9. The U.S. Army Court of Military Review affirmed the findings and sentence on 13 August 1981. 10. Special Court-Martial Order Number 149, issued by the Headquarters, 4th Infantry Division and on 24 November 1981, noted that the findings and sentence had been finally affirmed and ordered the BCD duly executed. 11. The applicant was discharged on 13 January 1982. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, due to a court-martial conviction for desertion, and his service was characterized as bad conduct. 12. 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. 13. The applicant provides third-party statements that describe him as a very respectful and outstanding member of the Rocky Mount community and an avid church goer. He has worked on many charity events and has always given back to the community. He is an outstanding citizen and speaks highly of and is proud of his time served in the Army. 14. The applicant has not provided and the record does not contain any evidence of either abuse by a sergeant or a substance abuse while on active duty. 15. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his bad conduct discharge (BCD). b. The applicant states he had a substance abuse issue while in the service. There was a sergeant in his company who harassed and humiliated him. The sergeant used to try his best to demoralize and humiliate him in front of the rest of the Soldiers. The sergeant finally got him to a point where he did not want to show up because he was afraid he would lose his temper and assault the sergeant. He has changed his life and is now a sound and respected member of the community. He would now like to clean up his military record. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 14 October 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 January 1982 * three third-party letters of support d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 16 January 1979 and was discharged on 13 January 1982. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, due to a court- martial conviction for desertion, and his service was characterized as bad conduct. g. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 18 January 1980, for disobeying a lawful order from a noncommissioned officer, on or about 3 January 1980, and for dereliction of duty by failing to report to his place of duty, on or about 3 January 1980 * on 1 April 1980, for disobeying a lawful order from a commissioned officer, on or about 24 March 1980 * on 16 May 1980, for failing to go to his place of duty, on or about 2 May 1980 * on 19 May 1980, for failing to go to his place of duty, on or about 16 May 1980, and for using disrespectful language toward a staff sergeant, on or about 16 May 1980 * on 15 July 1980, for failing to go to his place of duty, on or about 24 June 1980, and for failing to go to his place of duty, on or about 24 June 1980 h. A bar to reenlistment was initiated on 20 May 1980, based on the applicant's first three instances of NJP. The bar also indicated the applicant had six counseling statements for his inability to get up on time and to report to his place of duty on time. The applicant refused to sign the bar action. i. Court-martial charges were preferred against the applicant on 8 December 1980, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) during the following four periods: * from on or about 14 August 1980 until on or about 3 September 1980 * from on or about 26 September 1980 until on or about 30 September 1980 * from on or about 6 October 1980 until on or about 5 November 1980 * from on or about 6 November 1980 until on or about 20 May 1981 j. Before a special court-martial on or about 20 May 1981, at Fort Carson, Colorado, the applicant was found guilty of four specifications of being AWOL. k. While the applicant submitted documentation from a Certified Alcohol and Drug Counselor, this document is a support letter, and is not a medical document pertaining to any substance abuse counseling/behavioral health counseling. l. JLV does not contain any Behavioral Health diagnoses. m. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis. The applicant met retention standards at the time of discharge. The applicant does not have a service connection. Under liberal guidance, the applicant does not have any mitigating BH factor for his bad conduct (AWOL). BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s contentions, military record, regulatory guidance and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the review and conclusions of the advising official. One possible outcome was to grant relief. However, the majority the Board members concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination. One Board member found that given the time since the applicant’s period of service and the type of misconduct relief was warranted. Based on a preponderance of evidence available for review, 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 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 set forth the basic authority for the separation of enlisted personnel. The version in effect at the time 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 Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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.) AR20210008909 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1