IN THE CASE OF BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20220000222 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his bad conduct discharge (BCD) and an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050008734 on 14 February 2006. 2. The applicant stated he would like to have his character of service upgraded to general on his first issued DD Form 214 (Certificate of Release or Discharge from Active Duty). He only has his original copy. It was his understanding it would be automatically upgraded after a few years. Most of his baggage was lost during his separation. He received 2 honorable discharges during his service to his country. He is hoping to receive a DD Form 214 for these periods or whatever he needs to show he did give honorable service and perhaps receive other benefits he is entitled to. He was a good Soldier that made an unfortunate lapse in marital judgement while serving. 3. The applicant's record does not contain any DD Forms 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) or extensions. However, other evidence and documents in his record contain the following evidence: b. Item 4 (Assignment Considerations) of his DA Form 2-1 (Personnel Qualification Record) contains the entries: * "WAIVER 820707" * "31M/[selective retention bonus] SRB-1B/850329/890328" c. Item 27 (Remarks) of his DA Form 2-1 contains the following entries: * Expiration Term of Service (ETS) - 890709 * DBT - 103 days (3 months 13 days) -2 * Date of Entry (DOE) - 850329 (4 years) * Basic Active Service Date (BASD) - 781105 * Character of Service - Bad Conduct Discharge (BCD) * USAR - 770803 * RA - 780724 (3 years) * RA - 820119 (3 Years) 4. The evidence on his DA Form 2-1 and his DD Form 214 shows he enlisted in United States Army Reserve (USAR) on 3 August 1977 and served in that capacity through 24 July 1987, completing 11 months and 22 days of inactive service. This evidence also shows: a. The enlisted in the Regular Army (RA) on 25 July 1978 for a period of 3 years. b. He reenlisted for a period of 3 years on 19 January 1982. c. The period of his first term of enlistment was from (25 July 1978 to 18 January 1982). 5. He received non-judicial punishment on 26 November 1982, for wrongfully having in his possession some quantity of marihuana. He was reduced to private first class/E-3, forfeiture of $177.00 for 1 month, and 14 days of extra duty. 6. The evidence on his DA Form 2-1 and his DD Form 214 show: a. The applicant again reenlisted on 29 March 1985, for a period of 4 years. b. The term of his second enlistment was from (19 January 1982 to 28 March 1985). 7. General Court-Martial Order Number 71, dated 22 September 1987 shows: a. On 5 August 1987, a general court-martial (GCM) found the applicant Guilty, pursuant to his pleas, of the following three specifications of violating Article 128 of the Uniform Code of Military Justice and the following specifications: (1) Specification 1 - Inflict bodily harm, upon Sergeant [(SGT) (his wife)], by placing a blanket over her mouth and nose, on or about 4 April 1987. (2) Specification 2 - Commit an assault upon [SGT] by striking her in the face and neck, and did thereby inflict grievous bodily hard upon her, to wit: tissue damage to her left eye, cuts and abrasions on her facial area, and severe damage to her neck, on or about 6 April 1987. (3) Specification 3 - Assault Private First Class JDF, who then was and was then known by the [applicant] to be a sentinel in the execution of his duty, on or about 6 April 1987. b. The sentence, adjudged on 5 August 1987, included confinement for 112 days and to be discharged from the service with a BCD. c. The action states, the sentence was approved, and with the exception of the BCD, would be executed. 8. On 8 April 1988, the United States Army Court of Military of Review modified the guilty finding of Specification 3 of Charge II by changing it to read that "the [applicant] did, on or about 6 April 1987, assault Private First Class by striking him and breaking his nose." The court finally affirmed the findings of guilty, as modified, and the sentence in the applicant's case. 9. On 14 October 1988, General Court-Martial Order Number 50, issued at Headquarters, US Army Armor Center and Fort Knox, KY, Article 71c having been complied with and the sentence having been affirmed, directed the BCD portion of the applicant's sentence be executed. 10. On 30 November 1988, the applicant was discharged with a BCD under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-marital. His DD Form 214 shows he completed 10 years and 15 days of net active service this period. He had lost time from 870413-870803. Item 18 (Remarks) does not contain an entry for continuous honorable service. 11. On 14 February 2006, in ABCMR Docket Number AR20050008734, the Board considered his application but determined that after reviewing the application and all supporting documents, that relief was not warranted. The Board denied his request. 12. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, evidence found within the military record and published DoD guidance for liberal consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct, and the reason for separation. The Board noted the misconduct leading to the applicant’s separation and the absence of evidence attesting to post-service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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. Army Regulation (AR) 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. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. AR 635-8 (Separations Processing and Documents), currently in effect, and replaced AR 635-5 provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 3. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. a. Section IV prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Paragraph 3-7a provides 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. c. Paragraph 3-7b provides 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. 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. 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 based on 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) AR20220000222 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1