IN THE CASE OF: BOARD DATE: 11 April 2022 DOCKET NUMBER: AR20220009594 APPLICANT REQUESTS: His bad conduct discharge be upgraded to under honorable conditions (general). 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) * Letters of Support (two) 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 due to some extremely bad decisions on his part, he received a court-marshal for driving under the influence, which resulted in him receiving a bad conduct discharge after his initial enlistment. Since his discharge in 1993, he has come to the realization that he is an alcoholic. He has not consumed any alcohol since February 1996. He became a member of the Chicago Fire Department (CFD) where he worked until his retirement in June of 2020. In his 24 years with the CFD, he has not had any [negative] incidents. He is requesting that he be considered for upgrade for the purpose of receiving medical care through the Department of Veterans Affairs (VA). He had continuous honorable active service from 21 February 1984 to 15 August 1988, and received numerous awards to include the Army Commendation Medal, Army Achievement Medal, and the Army Good Conduct Medal. 3. The applicant enlisted in the Regular Army on 21 February 1984 for 4 years. He completed training with award of military occupational specialty 31U (Signal Support Systems Specialist). He reenlisted on 16 August 1988. 4. General Court-Martial Order Number 81, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA on 14 September 1992, shows the applicant was found guilty of: * one specification of failure to obey a lawful written order on 7 March 1993 * two specifications of drunk driving, 23 November 1991 and 7 March 1992 * one specification of failure to obey a lawful general regulation on or about 20 April 1992 The court sentenced him to reduction to E-1, confinement for six months, and to be separated from service with a BCD. The sentence was adjudged on 25 June 1992 5. He was place on excess leave effective 7 December 1992 pending appellant review. 6. The U.S. Army Court of Military Review affirmed the findings of guilt and the sentence on 22 December 1992. 7. General Court-Martial Orders Number 116, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 9 September 1993, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 8. The applicant was discharged on 29 October 1993, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), "Chapter 10", by reason of court-martial. He was credited with 9 years, 3 months, and 18 days of net active service. He had lost time from 25 June to 15 November 1992. His service was characterized as bad conduct. a. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the: * Army Commendation Medal (3rd award) * Army Achievement Medal (3rd award) * Army Good Conduct Medal (3rd award) * National Defense Service Medal * Army Service Medal * Overseas Service Medal (2nd award) * Noncommissioned Officers Professional Development Ribbon * Expert Qualification Badge with Rifle bar. b. Block 18 (Remarks) listed his continuous honorable service 84-02-21 to 88-08-15 as well as his immediate reenlistment. 9. Per regulatory guidance, a service member may request separation under the provisions of Army Regulation 635-200, Chapter 10, after court-martial charges are preferred against the Soldier or, where required, after referral, for final action by the court-martial convening authority. However, the available records do not contain a request for or processing under Chapter 10. 10. The applicant provides two letters of support attesting to his character/work ethic with the CFD as an Engineer and Emergency Medical Technician. He regularly and consistently provided critical services protecting and caring for the property and citizens of Chicago. He followed the rules, regulations and code of conduct and stayed within the guidelines of the CFD. As the driver of a Pumper/Engine that carries the team to the emergencies, he prided himself on getting the team to crisis locations in a timely and safe manner. 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. In determining whether to grant relief Boards for Correction of Military/Navy Records (BCM/NR) 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The applicant's trial by a general 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 general 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. b. His service during his last period of enlistment was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. However, the applicant completed a total of 9 years and 3 months of active service. Additionally, he provides two letters attesting to his character/work ethics as an Engineer and Emergency Medical Technician. As a result, the Board determined an upgrade to his character of service to general, under honorable conditions is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 29 October 1993 showing the character of service as General, Under Honorable Conditions. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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 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 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 guidance on the appropriate type of discharge and characterization of service. It states: (1) A Soldier will be given a BCD 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) Soldiers under sentence to an unsuspended dishonorable or bad conduct discharge will not be discharged before appellate review is completed, unless so directed by Headquarters, Department of the Army. d. Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court- martial. The request may be submitted at any time after charges had been preferred until final action by the court-martial convening authority. e. Whether proceedings will be held in abeyance pending final action on a discharge request per this chapter is a matter to be determined by the commander exercising general court-martial jurisdiction over the individual concerned. If disciplinary proceedings are not held in abeyance, the general court-martial convening authority may approve the Soldier's request for discharge in lieu of trial by court-martial after the Soldier has been tried. In this event, the officer who convened the court in his/her action on the case should not approve any punitive discharge adjudged. The officer should approve only so much of any adjudged sentence to confinement at hard labor or hard labor without confinement as has been served at the time of the action 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 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.) AR20220009594 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1