IN THE CASE OF: BOARD DATE: 20 April 2022 DOCKET NUMBER: AR20210014460 APPLICANT REQUESTS: correction of his DD Form 214 to show he had continuous honorable service from 15 June 1982 through 28 October 1992. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records), dated 26 May 2021 * Orders Number 099-238, issued by Headquarters, United States Army Infantry Center (USAIC) on 9 April 1985 * DD Form 4/1 (Enlistment/Reenlistment Document), 22 April 1985 * Permanent Orders 115-2, issued by Headquarters, USAIC on 14 June 1985 * Orders Number 029-222, issued by Headquarters, USAIC on 29 January 1987 * DD Form 4/1 (Enlistment/Reenlistment Document), 29 January 1987 * Permanent Orders 105-7, issued by Headquarters, USAIC on 1 June 1988 * DD Form 398 (DOD, Personnel Security Questionnaire), dated 10 June 1989 * Permanent Orders 121-14, issued by Headquarters, 82nd Airborne Division on 8 July 1991 * DD Form 4/1 (Enlistment/Reenlistment Document) 29 October 1992 * 2 DA Form 4187 (Personnel Action), dated 24 June 1994 * Special court-martial Order 6, issued by Headquarters, US Army Armor Center and Fort Knox on 27 February 1995 * Orders Number 096-00209, issued by Headquarters, United States Army Armor Center and Fort Knox on 6 April 1995 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 February 1984 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 is requesting that his period of honorable active duty service be reflected and that his DD form 214 be issued to reflect that period of service for the purpose of benefits eligibility. He has multiple service periods which ended in honorable military service. The last period of military service on record reflects a bad conduct discharge under special court-martial authority. 3. The applicant enlisted in the U.S. Army Reserve on 23 July 1981, under the DEP. He enlisted in the Regular Army on 15 June 1992. He had immediate reenlistments in the Regular Army, on 22 April 1985 and on 29 January 1987. 4. The applicant served on temporary duty (TDY) in Saudi Arabia from 8 October 1990 until 19 February 1991. 5. He reenlisted for the 3rd time on 29 October 1992 in the rank and pay grade of SSG/E-6. 6. Before a special court-martial on or about 16 November 1993, at Fort Bragg, North Carolina, the applicant was convicted of: a. Charge II: Violating Article 93 of the Uniform Code of Military Justice (UCMJ); specifically, one specifications of maltreatment of subordinate on 2 June 1993 b. Charge III: Violating Article 134 of the UCMJ; specifically, two specifications of indecent assault on 2 June 1993 and 18 May 1993. 7. The applicant's sentence included forfeiture of $500.00 pay per month for 6 months, to be reduced to the grade of E-1, confinement for two months and separation from service with a BCD. His sentence was approved on 3 March 1994, except for that portion extending to the BCD, and was ordered executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 8. The applicant was placed in confinement and was transferred to Fort Knox, Kentucky on 16 November 1993. He was released from confinement and placed in an indefinite excess leave status on 3 January 1994, pending appellate review of his BCD sentence. 9. The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's court-martial case on 6 May 1994. 10. Special Court-Martial Order Number 6, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 27 February 1995, noted that the applicant's sentence had finally been affirmed and ordered the remaining portion of his sentence duly executed. 11. The applicant was discharged on 12 April 1995, pursuant to his court-martial sentence. 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, section IV, as the results of a court- martial sentence and his service was characterized as bad conduct. His DD Form 214 further shows he was awarded or authorized the: * Southwest Asia Service Medal (2 Bronze Stars) * Army Commendation Medal (1st OLC) * Army Achievement Medal (1st OLC) * Army Good Conduct Medal (3rd Award) 12. The applicant DD Form 214 further shows in item 18 that he had continuous honorable active service from 15 June 1982 through 28 October 1992. 13. A review of the applicant’s service records contains sufficient evidence to support he is eligible for awards not annotated on his DD Form 214. The Korea Defense Service Medal will be added to the DD Form 214 as administrative corrections and will not be considered by Board: 14. 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. 15. The ABCMR does grant requests for upgraded characters of service solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board determined it is already annotated on the applicant’s DD Form 214 in the remarks “Continuous Honorable Service from 15 June 1982 through 28 October 1992, there is no action to be taken by the Board. Therefore, the Board denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's records show he was awarded or authorized the following awards not listed on his DD Form 214 for the period ending 12 April 1995 to add the Korea Defense Service Medal. 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 a Secretary's Department may only extend 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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier received a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate authority must have completed the review process, 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. 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. 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. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014460 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1