ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 May 2022 DOCKET NUMBER: 20210011431 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC94-09621 on 22 February 1995. Specifically, he requests his bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Letter to Congressional Representative, dated 16 July 1992 •DD Form 293 (Application for the Review of Discharge), with associateddocuments from Docket Number AC94-09621 •Citation for Outstanding Performance, covering of 6 August 1997, andSeptember 1992 to November 2016 •Certificate of Appreciation, dated 6 April 2002 •Certificate of Training, dated 24 April 2013 •Character Reference Letters, dated between 3 March 2021 and 5 May 2021 •Congressional Liaison, Privacy Release Form, dated 24 May 2021, with self-authored statement •Letter from Army Review Boards Agency (ARBA), dated 9 July 2021 FACTS: 1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket Number AC94-09621 on 22 February 1995. 2.As a new argument, the applicant states he was deployed overseas and was20 years old at the time of the incident. He paid full restitution, was confined for fourmonths, reduced in rank, and given a BCD. He is remorseful for what he did but hewasn’t provided the proper guidance to correct his situation after his divorce. 3.On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and other mental health is related to his request as contributing and mitigating factors in the circumstances that resulted in his separation.4.The applicant enlisted in the Regular Army on 1 March 1978. He reenlisted in the Regular Army on 29 August 1980 for a period of 3 years. He was promoted to the rank/grade of specialist five/E-5 on 1 September 1980.5.Before a general court-martial on 1 July 1982, the applicant was found guilty of stealing U.S. currency from on or about 9 May 1980 to 8 November 1980, and with intent to deceive, signing an official record on or about 17 December 1980, and of defrauding the U.S. Government from on or about 23 December 1980 to 9 February 1982. The court sentenced him to confinement at hard labor for one year, forfeiture of pay for one year, and to be separated from service with a BCD. The sentence was approved on 6 August 1982 and the record of trial was forwarded for appellate review.6.The U.S. Army Court of Military Review affirmed only so much of the findings of guilty and the sentence as provided for a BCD, confinement at hard labor for four months, and forfeiture of $400 per month for four months, on 1 February 1983.7.General Court-Martial Order Number 23, issued by on 7 June 1983, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed.8.The applicant was discharged on 1 July 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service characterized as bad conduct.9.Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), 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.10.The applicant provides:a.Four character reference letters, attesting to his dedicated service as a FederalFire Captain, his good moral character, mentorship, and volunteerism in the community. b. Two citations of outstanding performance while serving as a Lead Firefighter and as a Rescue Team Member. 11.In reaching its determination, the Board can consider the applicant’s petition, hisarguments and assertions, and his service record in accordance with the publishedequity, injustice, or clemency guidance. 12.MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisorreviewed the supporting documents and the applicant’s military service records. a.The applicant checked the block for PTSD and other mental health as issuesrelated to his upgrade request. No medical documentation of any psychiatric conditions was provided for review. b.A review of the Department of Veterans Affairs' Joint Legacy Viewer indicates theapplicant has not been evaluated or treated in the Department of Veterans Affairs' system. He does not have a service connected disability rating. c.There is no documentation to support a behavioral health diagnosis at the time ofhis discharge. There is no documented psychiatric condition to consider with respect to mitigation of his misconduct. It should be noted that if subsequent documentation of PTSD is provided, PTSD is not a mitigating factor for larceny. •Did the applicant have a condition or experience that may excuse or mitigatethe discharge? No. •Did the condition exist or experience occur during military service? No. •Does the condition or experience actually excuse or mitigate the discharge?Not applicable. •Does the condition or experience outweigh the discharge? Not applicable. BOARD DISCUSSION: 1.The Board carefully considered the applicant's request, supporting documents,evidence in the records, a medical review, and published Department of Defenseguidance for liberal consideration of discharge upgrade requests. The Board consideredthe applicant's statement, his record of service, the frequency and nature of hismisconduct, and the reason for his separation. The Board considered the applicant'sPTSD claim and the review and conclusions of the ARBA Medical Advisor. The Boardfound the available evidence sufficient to fully and fairly consider this case without apersonal appearance by the applicant. 2.Although there were no medical records provided indicating the applicant had abehavioral health condition that may have mitigated the misconduct that led to his discharge, the applicant has provided evidence of post-service achievements and letters of reference that support clemency. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 3.The board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AC94-09621, 22 February 1995. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general) and to incorporate the corrections described in Administrative Note(s) below. X XCHAIRPERSONSigned by: 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 1 July 1983, is missing entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding toitem 18 (Remarks): • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780301 UNTIL 800828 REFERENCES: 1. 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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 provided 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. Chapter 3 provided that an enlisted person would be given a bad conduct discharge 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, USC, 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 Service Discharge Review Boards and Service 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//