IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007272 APPLICANT’S REQUEST: * Upgrade of his bad conduct discharge * Amendment of his separation (SPD) code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Army Discharge Review Board) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), Section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 a court-martial gave him a bad conduct discharge for an offense that has followed him for the past 30 years; throughout that period, he was unable to get proper benefits, nor was he able to secure a job in his field. He contends that 30 years is enough to punish someone for minor offenses. He humbly asks the Board to reconsider the court's punishment; he affirms he has not had any similar offenses since his discharge. 3. A review of the applicant's service records show: a. On 2 September 1986, the applicant enlisted into the Regular Army for 3 years. Upon completion of initial entry training and the award of military occupational specialty 64C (Motor Transport Operator; subsequently changed to 88M), orders assigned him to an armored cavalry regiment at Fort Bliss, TX, and he arrived at his unit, on or about 26 January 1987. b. Between 10 March and 8 June 1987, the applicant's unit reported him as absent without leave (AWOL) twice: 10 to 17 March 1987 (7 days) and 26 May to 8 June 1987 (13 days). c. Effective 1 January 1989, the applicant's leadership promoted him to specialist (SPC)/E-4. On 3 January 1989, his unit reported him as AWOL; the applicant returned 9 January 1989, after a 6-day absence, but, on 13 January 1989, he departed again in an AWOL status. He returned to military control, on 19 January 1989 (a 6-day absence). d. On or about 7 March 1989, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), and the imposing commander directed the applicant's reduction from SPC to private first class (PFC)/E-3; a copy of the NJP proceedings is not available for review. e. On 20 March 1989, the applicant's unit showed the applicant in an AWOL status, but he returned to military control the following day (21 March 1989). On 18 April 1989, the applicant went AWOL once more, returning the next day after a 1-day absence. On 22 June 1989, the applicant's chain of command placed him in pre-trial confinement but released him, on 1 July 1989. f. On 9 August 1989, upon finding the applicant had departed the unit without authority, the leadership reported him AWOL and immediately changed his status to dropped from unit rolls; on 14 August 1989, after 5 days, the applicant returned to military control. g. On 6 September 1989, the applicant accepted NJP because, on 3 August 1989, he had altered a dental appointment form to show the words, "24 hrs Quarters." The imposing commander reduced the applicant to private (PV2)/E-2. On 10 November 1989, the applicant's unit reported him as AWOL, and he returned to his unit, on 13 November 1989, after being absent for 3 days. h. On 19 January 1990, and consistent with the applicant's pleas, a general court- martial convicted the applicant of violating the UCMJ. (1) The court found the applicant guilty of three specifications of Article 112a (Wrongful Distribution of a Controlled Substance: Cocaine) and one specification of AWOL (10 to 13 November 1989). The court sentenced him to 5-years' confinement, reduction to private (PV1)/E-1, and a bad conduct discharge; the court immediately remanded the applicant to confinement. (2) On 16 February 1990, the general court-martial convening authority approved only so much of the sentence as provided for 18-months' confinement, reduction to PV1, and a bad conduct discharge; with the exception of the bad conduct discharge, the court-martial convening authority ordered the sentence's execution. i. On or about 27 March 1990, orders assigned the applicant to a correctional brigade at Fort Riley, KS, for the purpose of "VET Training." j. On 25 May 1990, after considering the entire record and the issues raised by the applicant, the U.S. Army Court of Military Review affirmed the findings of guilty, as well as the sentence in the applicant's case. k. On 29 August 1990, a general court-martial order announced the completion of the applicant's appellate review process and directed the execution of his bad conduct discharge; the applicant was to remain at Fort Riley for the remainder of his confinement. l. On 7 September 1990, the applicant underwent a separation physical. (1) On his Standard Form (SF) 93 (Report of Medical History), the applicant reported he was in good health, but answered "Yes" to questions about severe headaches and dizziness; cramps; broken bones; and having a "trick" knee. In addition, the applicant indicated he had been having trouble sleeping due to nightmares, and he felt worried and depressed. (2) On the applicant's SF 88 (Report of Medical Examination), the examining medical authority found the applicant qualified for separation and noted no defects or diagnoses. m. On 26 October 1990, orders separated the applicant with a bad conduct discharge; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 2 months, and 26 days of his 3-year enlistment contract, with seven periods of lost time. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed the Army Service Ribbon and two marksmanship qualification badges. n. On 13 October 2020, the applicant petitioned the ABCMR, requesting an honorable character of service. (1) The applicant argued that a mistake made 30 years ago did not reflect who he was as a person; at the time he committed his misconduct, he was a "young, dumb kid." (a) The applicant disclosed that, while on active duty, he had become "frustrated with the system." When faced with consequences of his actions, his leadership offered him two alternatives: be demoted a second time or get out of the Army; he chose the latter. (b) In retrospect, the applicant wished he had selected the first option; he realized now that his leaders were urging him to choose the demotion rather than separation because they felt he was a vital part of the unit, and they recognized the opportunity he was throwing away. The applicant pointed out that, since leaving the Army, he had become the model citizen he believed the Army was shaping him to be, and he asked the Board to note that his unit wanted him to remain on active duty. (2) On 19 November 2021, the Army Review Boards Agency administratively closed the applicant's request because another agency had checked out his records, and they were unavailable for the Board's review. 4. The applicant requests the upgrade of his bad conduct discharge. 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 ABCMR is not empowered to set aside a conviction. Rather, the law only authorizes the Board 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. The applicant additionally requests the Board change his SPD code. a. Per Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, a separating Soldier's SPD is linked to the regulatory separation authority, and the regulation referred DD Form 214 preparers to AR 635-5-1 (SPD) for determining the correct SPD code. AR 635-5-1, in effect at the time, stated Soldiers being separated based on a bad conduct discharge were issued the SPD of "JJD." b. Modifying the applicant's SPD would require the Board to additionally amend both the regulatory separation authority and narrative reason for separation. (1) Section II (Secretarial Authority), chapter 5 (Separation for the Convenience of the Government), AR 635-200 (Personnel Separations – Enlisted Personnel) stated the separation of Soldiers was the prerogative of the Secretary of the Army. Except as otherwise delegated, such separations only occurred by the Secretary's authority, and were to be based on a determination that the separation was in the best interests of the Army. (2) According to AR 635-5-1 (SPD), then in effect, Soldiers separated per paragraph 5-3, AR 635-200 were issued the following narrative reason for separation: "Directed by Service Secretary"; the SPD was "JFF." 6. 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. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 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 noted, the applicant provided insufficient evidence of post-service achievements or character letters of support to show honorable conduct that might have mitigated the discharge characterization. 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. 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. 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 the following: a. 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. b. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of a Secretary's Department may only extend to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. Army Regulation (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier received a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate authority must have completed the review process, and the affirmed sentence ordered duly executed. d. Section II (Secretarial Authority), chapter 5 (Separation for the Convenience of the Government), AR 635-200 (Personnel Separations – Enlisted Personnel) stated the separation of Soldiers was the prerogative of the Secretary of the Army. Except as otherwise delegated, such separations only occurred by the Secretary's authority, and were to be based on a determination that the separation was in the best interests of the Army. 3. AR 635-5-1, in effect at the time, stated Soldiers being separated based on a bad conduct discharge were issued the SPD of "JJD." Soldiers separated per paragraph 5-3, AR 635-200 were received "Directed by Service Secretary" as the narrative reasons for separation; the SPD was "JFF." 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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) AR20220007272 1 ABCMR Record of Proceedings (cont) AR20220007272 1