ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220005064 APPLICANT REQUESTS: reconsideration of his previous requests for an upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 Dockets Number AR20130010522, boarded on 27 February 2014 and AR20150002579, boarded on 22 September 2015. 2. The applicant states that although he did some bad things, he did do some good things as well. He did ask his chain of command for some help with his problems, but they refused. However, he realized later, that he should have tried to receive help from the Chaplain, but it was too late. He is very sorry and understands that he made the mistake. He is ashamed and wishes he could go back and change things. 3. The applicant does not provide any supporting documents. 4. A review of the applicant’s service record shows the following documents: a. On 7 October 1980, he enlisted in the Regular Army. b. DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) shows on 23 September 1981, in Germany, he accepted nonjudicial punishment (NJP) for being incapacitated for proper performance of duties, because of previous indulgence in intoxicating liquor. He was found guilty and received a reduction in pay grade from E-3 to E-2 (suspended), forfeitures in pay of $100.00 for a period of one month, restriction and extra duty for 14 days. He did not appeal. c. DA Form 2627-2 (Record of Supplemental Action under Article 15, UCMJ) shows on 16 August 1983, the applicant was apprehended for driving on revocation. His suspended punishment for reduction to the grade of E-2 was vacated. It is unclear if he had another NJP prior to his 23 September 1981 NJP to justify the vacation in 1983. d. DA Form 2-2 (Insert - Record of Court Martial Conviction) shows on 12 October 1983, he was convicted by a special court-martial (SPCM) of: one specification of operating a vehicle while his driving privileges revoked; one specification of operating a vehicle while intoxicated; and one specification of wrongfully possessing marijuana. e. SPCM Order Number 80, dated 18 July 1984, shows his SPCM was adjudged on 12 October 1983 and the sentence approved on 9 November 1983 for the reduction to the grade of E-1, forfeitures of pay in the amount of $382.00 per month for two months, confinement at hard labor for two months and to be discharged from the service with a BCD. f. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged, as a result of court-martial in accordance with Army Regulation 635- 200 (Personnel Separations) with a BCD. He completed 3 years, 8 months, and 15 days of creditable military service during this period and had lost time from 12 October 1983 to 30 November 1983. 5. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 6. Prior ABCMR Docket Number AR20130010522, boarded on 27 February 2014 shows that his request for an upgrade was denied. The Board determined that the SPCM was warranted by the gravity of the offenses charged. 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. His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 7. Prior ABCMR Docket Number AR20150002579, boarded on 22 September 2015, shows he submitted a reconsideration request, which was denied by the Board. The Board noted his letters of commendation for his duty performance during training exercises were insufficiently meritorious as to outweigh the conduct that led to his court- martial and BCD. Therefore, clemency in the form of an honorable or a general discharge was not warranted in this case. BOARD DISCUSSION: After reviewing the application and all supporting documents, 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. 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. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20130010522, boarded on 27 February 2014 and AR20150002579, boarded on 22 September 2015. 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 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 3-7c – a discharge under other than honorable conditions was an administrative separation from the service under conditions other than honorable. It could be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Chapter 3-11 – a member would be given a dishonorable or 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. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005064 1 1