IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20230000624 APPLICANT REQUESTS: reconsideration of his two previous request to upgrade his character of service from bad conduct discharge to under honorable conditions (general) and a personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 17 October 2022 * Self-authored letter, undated * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Printout of military reenlistment codes * Army Discharge Review Board letter, 27 April 1993 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 AR2003096668 on 6 May 2003 and Docket Number AR20160009543 on 10 April 2018. 2. The applicant provides new argument or evidence not previously considered by the Board. 3. The applicant states, his mental health issues were a significant reason for his bad behavior. He spoke with his company commander and platoon leader regarding his apprehension for performing field duty. His anxiety and depression were dismissed and seen as laziness and defiance. He reacted poorly and received a bad conduct discharge. His DD Form 214 shows a reentry code of RE-3, 3B, which provides him the opportunity to enlist in the military, with a waiver, within a specific period of time. He also states that other mental health issues are related to his request. (See full statement). 4. On 6 March 1979, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 5. Summary Court-Martial Order Number 62, issued by Headquarters, 7th Infantry Division and Fort Ord, shows a Court-Martial convened on 16 June 1980. The applicant was arraigned, tried, and convicted of the following: a. Charge I, guilty of a violation of Article 90, specification: in that the applicant received a lawful order command from Captain , his superior commissioned officer, to shave by the 0845 formation, on or about 28 March 1980, and willfully disobeyed the same. b. Additional Charge I: Violation of the UCMJ Article 90. c. Charge II, specification: in that the applicant received a lawful command from Captain his superior commissioned officer to get into the jeep, at Jolon Road within the area of Fort Hunter Liggett, CA, wearing a partial military uniform, after having immediately departed his unit area, on or about 21 April 1980, willfully obey disobeyed the same. d. Additional Charge II: violation of the UCMJ Article 128. Specification: in that the applicant did at Jolon Road within the area of Fort Hunter Liggett, CA, wearing a partial military uniform, after having immediately departed his unit area, on or about 21 April 1980, assault Captain , a commissioned officer by biting him on the right leg and left hand. e. The court sentenced him to reduction to grade of private E-1, forfeit of $150.00 pay per month for three months, and confinement at hard labor for three months. f. The sentence was adjudged on 16 June 1980. g. On 1 August 1980, the convening authority approved the sentence. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of appellate review, the accused will be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority may direct. 6. On 9 September 1980, the applicant’s duty status changed from assigned not joined to absent without leave (AWOL). 7. On 7 October 1980, his duty status changed from AWOL to present for duty (PDY). 8. On 25 November 1980, the U.S. Army Court of Military Review, found the approved findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record that they should approve such findings of guilty and the sentence affirmed. 9. On 24 April 1981, Special Court-Martial Order Number 48, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, shows the sentence was affirmed pursuant to Article 66. The provisions of Article 71(c) having been complied with the sentence will be duly executed. The portion of the sentence that pertained to confinement was served. 10. On 6 May 1981, the applicant’s duty status changed from excess leave to AWOL, and on 11 May 1981 to PDY. 11. The applicant was discharged from active duty on 14 May 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 11, by reason of court-martial with a bad conduct discharge. His DD Form 214 also shows: a. He completed 1 year, 8 months, and 24 days of net active service this period. b. He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Hand Grenade, and Expert Marksmanship Qualification Badge with 81-millimeter mortar. c. He received a separation code of "JJD" and the reenlistment code "RE-3, 3B." d. Lost time during the period 4 to 7 April 1980; 21 April to 28 August 1980; 9 September to 6 October 1980; and 6 to 10 May 1981. 12. On 6 May 2005, in ABCMR Docket Number AR2003096668, the Board considered, but ultimately denied the applicant's request to upgrade his Bad Conduct Discharge to under honorable conditions (General). 13. On 10 April 2018, in ABCMR Docket Number AR20160009543, the Board denied his request for an upgrade of his discharge. During this consideration, the Army Review Boards Agency Clinical Psychologist was asked to determine if there was a nexus between the information/diagnoses contains in the documentation of records and the misconduct that resulted in the applicant's discharge. This opinion states, in effect: a. This opinion is based on information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time of his service. Also, no civilian medical records or supportive medical documentation post-service were provided. b. Based on a thorough review of the available medical records, no change to the characterization is recommended. c. The applicant received medical attention for a back injury and other concerns during his time of service; however, his medical conditions are not reasonably related to the misconduct which led to his early separation from service. 14. By regulation (AR 635-200), a paragraph 3-7, 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. Whenever there is doubt, it is to be resolved in favor of the individual. 15. Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. 16. 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. 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, available military records and medical review, the Board concurred with the advising official finding a nexus between the information/diagnoses contains in the documentation of records and the misconduct that resulted in the applicant's discharge, however no change to the characterization is recommended based on his medical conditions are not reasonably related to the misconduct which led to his early separation from service. Additionally, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have provided mitigating factors for the Board to consider as clemency. The 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 Evidence in the record show numerous instances of misconduct during his 1 year, 8 months, and 24 days of net active service. 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, the Board denied relief. 3. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. 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 Board found 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 AR2003096668 on 6 May 2003 and Docket Number AR20160009543 on 10 April 2018. 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. 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. 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. 2. On 25 August 2017, the acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 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 (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. 4. Army Regulation 15-185 (ABCMR), paragraph 2-11 states applicant's do not have a right to a hearing before the ABCMR. The Director may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000624 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1