IN THE CASE OF: BOARD DATE: 1 June 2023 DOCKET NUMBER: AR20220010693 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect, he is trying to better himself. He would like assistance with medical, housing, and burial benefits. 3. The applicant enlisted in the Regular Army on 29 January 1985. The highest rank he attained was private first class/E-3. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice on two occasions for the following violations: a. Failure to go at the time prescribed to his appointed place of duty on or about 8 February 1986. His punishment consisted of reduction in rank to private/E-1, forfeiture of $200.00 pay per month for two months, 30 days extra duty, and 30 days restriction. b. Failure to report for duty on or about 4 April 1986. His punishment consisted of reduction in rank to private/E-1, forfeiture of $150.00 pay per month for one month, extra duty for 14 days, and 14 days restriction. 5. Court-martial charges were preferred against the applicant for a violation of the Uniform Code of Military Justice, Article 121 for larceny; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 6. The applicant consulted with legal counsel on or about 18 July 1986. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged making this request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 7. His immediate and intermediate commanders recommended approval of the request for discharge in lieu of trial by court-martial, with a service characterization of UOTHC, on 5 August 1986. 8. The separation authority approved the recommended discharge on 6 August 1986, he directed the applicant be issued an UOTHC discharge. 9. A Standard Form (SF) 93 (Report of Medical History), dated 11 August 1986, and the corresponding SF 88 (Report of Medical Evaluation) show he reported being in fair health, and the examining physician determined he was medically qualified for separation. 10. On that same date, the applicant underwent a mental status evaluation. He was psychiatrically cleared to undergo separation proceedings. 11. A DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows the applicant's commander initiated a suspension of favorable personnel actions on 16 August 1986. The basis for the suspension was court-martial action. 12. Three DA Forms 4187 (Personnel Action) show the following changes in the applicant's duty status: * Present for Duty to Confined by Military Authorities on 28 August 1986 * Confined by Military Authorities to Present for Duty on 5 September 1986 * Present for Duty to Confined by Military Authorities on 8 September 1986 13. Special Court Martial Order Number 135, Headquarters, 7th Infantry Division (Light), Fort Ord, CA, dated 21 November 1986, shows: a. He was found guilty of the following charges: * one specification of larceny of property, of a value in excess of $100.00, during the period 6 March 1986 to 8 March 1986. * one specification of larceny of property, of a value greater than $100.00, and three specifications of larceny of lawful currency, of a value of $100.00 during the period 7 May 1986 to 13 August 1986. * six specifications of failure to repair, during the period 18 June 1986 to 2 August 1986. * one specification of breaking restriction (by consolidation with specifications two and three) from 15 August 1986 to 16 August 1986. b. He was sentenced to forfeiture of $426.00 pay per month for six months, confinement for six months, and a bad conduct discharge. c. The sentence was approved on 21 November 1986 and the record of trial was forwarded to the Judge Advocate General of the Army for appellate review. 14. Special Court-Martial Order Number 157, US Army Correctional Activity, Fort Riley, KS, 26 October 1987, shows the sentence was finally affirmed, the provisions of Article 71(c) had been complied with, and the sentence was ordered duly executed. 15. The applicant was discharged on 6 November 1987, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, by reason of court-martial, in the rank of private/E-1. His service was characterized as bad conduct (Separation Code JJD, Reentry Code 4). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 2 years, 4 months, and 15 days of net active service with lost time from 28 August 1986 to 4 September 1986 and 8 September 1986 to 20 January 1987. 16. 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. 17. Regulatory guidance provides a Soldier will receive a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The applicant's trial by a court-martial was warranted by the gravity of the offense charged. His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. b. 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 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. REFERENCES: 1. Title 10, U.S. Code, 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. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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. 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. 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. 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, 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. 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) AR20220010693 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1