IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010700 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge, and a personal hearing before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Character Letters (six) FACTS: 1. The applicant did not file within the 3-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 aware the record shows that he was discharge with a BCD. He was accused of a crime he did not commit and did not have the best counsel and was misrepresented by that counsel. Ever since the event happened it has adversely affected him. He keeps playing it over and over in his mind. He now works as a paster and with the youth in the community and aboard. He sometimes sees himself in the young generation, especially in African American males, that are accused of things that they did not do. 3. The applicant enlisted in the Regular Army on 21 July 1982 for 3 years, he completed training with award of military occupational specialty 16R (Air Defense Artillery Short Range Gunnery Crewmember). The highest grade he held was E-4. 4. A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 October 1982 shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 22 August 1983, for disrespectful deportment toward a superior noncommissioned officer (NCO); his punishment included reduction to E-2 * 26 March 1985, for failure to report for formation on 18 March 1985 * 5 April 1985, for being disrespectful in language toward an NCO; his punishment included reduction to E-3 6. A series of DA Forms 4187 (Personal Action) record the applicant's status between 6 May through 26 July 1985. These forms show his placement in pretrial confinement, pending court-martial for larceny, house breaking and conspiracy, and post-trial confinement. [The charge of house breaking and conspiracy were dismissed at trial.] 7. Special Court-Martial Order Number 24, issued by Headquarters, 82nd Airborne Division on 10 September 1985, shows the applicant was found guilty of larceny of personal property valued in excess of $100.00. The case was adjudged on 14 May 1985 and the court sentenced him to forfeiture of $413.00 pay per month for 3 months, reduction to E-1, confinement for 3 months, and to be discharged with a BCD. The court-martial convening authority approved the sentence and directed that except for the BCD the sentence be executed. 8. The applicant was place on excess on 10 October 1985, pending appellant review. 9. The U.S. Army Court of Military Review affirmed the findings of guilt and the sentence on 28 April 1986. 10. The U.S. Court of Military Appeals accepted the petition for review of the court- martial findings and sentence but denied the case on 12 January 1987. 11. Special Court-Martial Order Number 37, issued by Headquarters U. S. Army Armor Center and Fort Knox, Fort Knox, KY on 10 March 1987, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 12. The applicant was discharged on 23 April 1987, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as bad conduct. He was credit with 4 years, 6 months, and 19 days of net active service with 521 days in excess leave and two periods of lost time totaling 75 days. 13. The applicant provides six letters of character from friends, coworkers, and a fellow minister. They describe him as a great friend who takes great pride in serving others; someone who they could turn to if they were in trouble or needed help; he is a leader and mentor in the community. He has a high degree of integrity, responsibility, compassion, and real honesty. They have never known him to break the law or become part of any unlawful situation. He is a person who has a steadfast and resolute demeanor that allows him to continually seek to improve himself. He has attended and completed several educational programs, including State University Batchelor of Science in Engineering and Technical College Electrical and Computer Engineering Programs. He has also completed a Ministerial Program and has served as a Pastor. 14. 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. 15. The Army Discharge Review Board (ADRB) considered the applicant's request for a discharge upgrade. On 10 September 1991, the ADRB determined he was properly and equitably discharged and denied his petition for relief. 16. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. ABCMR 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. 2. The Board applauded the applicant’s post service achievements and found his character letters of support and his extensive community service and outreach commendable. However, 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. Therefore, relief was denied. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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. 3. Army Regulation 635-200 sets 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. Chapter 3 provides that a Soldier will be given 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. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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// ABCMR Record of Proceedings (cont.) AR20220010700 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1