IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220002765 APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD) to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 the allegations were not all facts. The U.S. Army Criminal Investigation Division (CID) had him admit to things that were not true, they took his words and changed them around. At that time, he was 17 years old and did not understand the legal system. He was not afforded representation during the court- martial and because of that he was not truly afforded his right to a fair and just trial. 3. On 5 December 1979, the applicant enlisted in the Regular Army for three years. He was 17 years old at the time of enlistment. 4. On 5 June 1980, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for failure to go at the time prescribed to his appointed place of duty, on or about 14 May 1980 and being disrespectful in language towards a superior noncommissioned officer, on or about 8 May 1980. 5. Before a general court-martial on 25 July 1980, at Fort Sill, Oklahoma, the applicant was found guilty of raping a female Soldier and wrongfully making a false statement, on or about 29 March 1980. The court sentenced him to forfeiture of $348 pay per month for 36 months, confinement at hard labor for three years, and to be separated from service with a dishonorable discharge. The sentence was approved on 22 August 1980 and the record of trial was forwarded for appellate review. 6. The U.S. Army Court of Military Review affirmed the findings and sentence on 20 October 1980. 7. General Court-Martial Order Number 263, issued by Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 15 April 1981, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 8. The applicant was discharged on 18 May 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as a result of court-martial. His service characterized as bad conduct. He was credited with 6 months and 18 days of net active service this period. He was awarded or authorized two marksmanship badges. 9. In the processing of this case, a CID Report of Investigation (ROI) was obtained on 13 July 2022. The ROI noted two separate incidents. a. On or about 19 July 1980, the applicant was cited for breach of the peace (mutual affray) with two other individuals and disrespect to a superior commissioned officer. He was transported to the military police station for processing. b. While being processed as a prisoner, a military policeman found a hand rolled cigarette containing suspected marijuana, in the applicant’s field jacket. A field test was conducted on the evidence and a positive result was obtained for marijuana. The case was closed in the files of the office carrying the applicant as the subject to wrongful possession of marijuana. 10. The applicant was provided a copy of the ROI on 13 July 2022, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 11. 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. 12. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. Based on the severity of the misconduct which led to the applicant’s discharge, the Board determined that the character of service the applicant receive upon discharge 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 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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. c. Chapter 11 provided that an enlisted person would be given a BCD 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. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20220002765 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1