IN THE CASE OF: BOARD DATE: 22 August 2023 DOCKET NUMBER: AR20230000883 APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 293 (Application for the Review of Discharge), dated 3 October 2022 • DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 that it’s been 36 years and he is requesting upgrade. He has been married for 25 years, has three great children, and has served on the Deacon Board. An upgrade of his discharge would be his gold medal of completion. 3. On 9 September 1982, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 72G (Automatic Data Telecommunications Center Operator). 4. On 5 March 1984, the applicant was reported as absent without leave (AWOL) and remained absent until 7 March 1984. 5. On 19 April 1984, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a superior noncommissioned officer, on or about 9 January 1984; and for going AWOL from on or about 5 March 1984 to on or about 7 March 1984. His punishment included reduction to the grade of E-2, forfeiture of $156.00 pay, and 14 days extra duty. 6. On 15 July 1985, the applicant accepted NJP under Article 15 of the UCMJ, for breaking restriction, on or about 5 July 1985. His punishment included reduction to the grade of E-2, forfeiture of $162.00 pay, and 14 days extra duty. 7. On 12 August 1985, the applicant accepted NJP under Article 15 of the UCMJ, for communicating indecent language to a female Soldier, on or about 7 August 1985. His punishment included forfeiture of $200.00 pay for two months and 14 days extra duty. 8. Before a general court-martial on 16 August 1985, at Fort Carson, CO, the applicant was found guilty of one specification of committing carnal knowledge and adultery, on or about 2 June 1985. 9. The court sentenced him to a BCD, reduction to the grade E-1, forfeiture of $413.00 pay per month for six months, and confinement for six months. The sentence was subsequently approved on 8 October 1985 and the record of trial was forwarded for appellate review. 10. On 5 December 1985, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 11. On 13 January 1986, the applicant was placed on excess leave. 12. The U.S. Army Court of Military Review affirmed the findings and sentence on 28 February 1986. 13. The available record is void of the General Court-Martial Order affirming the sentence and ordering it duly executed. 14. The applicant was discharged on 1 July 1986. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, section IV, as a result of court-martial. His service was characterized as bad conduct. He was credited with 3 years, 4 months, and 23 days of net active service this period with 148 days of time lost. 15. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 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 general court- martial was warranted by the gravity of the offense charged. His conviction and discharge were effected 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. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature 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 xx: xx: xx: 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. 8/22/2023 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, U.S. Code, 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. c. Chapter 3, Section IV provided that a member 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, U.S. Code, 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 Boards for Correction of Military/Naval Records (BCM/NR) 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//