IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230003434 APPLICANT REQUESTS: * upgrade of his characterization of service from "Bad Conduct" to "Honorable" * upgrade of his narrative reason and separation code from "As a result of court- martial, other" to "Secretarial Authority" APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 14 November 2022 * legal brief, date unknown * Exhibit 1 – DD Form 214 (Certificate of Release or Discharge from Active Duty, 13 June 1986 * Exhibit 2 – Orders * General Court-Martial Order Number 151, 28 April 1986DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 16 July 2006 * Order 100-02, 6 June 1986 * Exhibit 3 – self-authored statement, 19 September 2022 * Exhibit 4 – character reference,, 4 October 2022 * Exhibit 5 – character reference,, date unknown * Exhibit 6 – character reference, ., 13 October 2022 * Exhibit 7 – character reference, date unknown 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 AR20150015025 on 14 December 2016. 2. The applicant states, in effect, he was a young man always looking for an easy way. He chose to use drugs and steal, and he threw his career away. He deeply regrets his actions that led to his dishonorable discharge [sic] and feels he served his time. He should not have to live the rest of his life with his discharge hanging over his head. If he could go back, he would do everything right by serving his country honorably. Upon discharge, he has done everything possible to show people how much he has changed. He raised his three children to be honest and live their lives as good people, he has been employed in the trucking industry for over 40 years taking pride in his work and everything he does. 3. The applicant's counsel provides a 5 page legal brief which is available for the Board to review in full in the supporting documents/evidence file. The following is a summary of counsel's legal brief: a. Counsel briefly addresses the applicant's honorable service in the earliest parts of his enlistment in the Regular Army, to include referencing the applicants' medal(s) and qualification(s) earned. b. Counsel addresses the applicants court-martial and sentencing of a bad conduct discharge, forfeiture of all pay and allowances for 30 months, reduction in grade to private (PV1/E-1) and confinement of 30 months. c. Counsel notes the applicant, since being discharged, has worked hard to overcome his past and rebuild his life, stating he "takes full responsibility for his actions". Counsel also references 4 character reference statements sent in on behalf of the applicant. d. Counsel asserts that the applicant is seeking upgrade of his discharge to correct his characterization of service from "bad conduct" to "honorable" and narrative reason for separation and separation code from "as a result of court-martial, other" to "secretarial authority" stating the applicant served honorable and received myriad awards until his lapse in judgement. He has excelled in the civilian word proving himself to be a model citizen and is capable of adapting to challenges that come his way. The applicant does not deserve to be stigmatized and unduly prejudiced because of his bad conduct discharge. 4. The applicant enlisted in the Regular Army on 13 July 1977, reenlisted on 31 January 1980 and completed an oath of extension of enlistment on 14 January 1982. 5. His DA Form 2-1 (Personnel Qualification Record) shows the highest rank obtained was the rank/grade of specialist (SPC/E-4) with a date of rank of 1 February 1980. 6. General court-martial order number 50, shows on 23 April 1985 the members adjudged the sentence on 23 April 1985, of bad conduct discharge, confinement for 30 months, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. It additionally shows the applicant was arraigned and tried on the following charge(s) and specification(s): a. Charge I, Article 81, specification(s) conspiracy to commit larceny on 9 November 1984, found guilty. b. Charge II, Article 108, specification(s) sell military property of the United States, of a value of $1,003.33, on 9 November 1984, found guilty. c. Charge III, Article 112a, specification(s) wrongfully possess and use marijuana on 24 October 1984, found guilty. d. Charge IV, Article 121: Specification 1: larceny of a video cassette recorder valued at $400.00 between 23 and 25 May 1984, found guilty. Specification 2: larceny of a cassette tape player valued at $307.00 on 15 October 1984, found guilty. Specification 3: larceny of a sewing machine valued at $497.00 on 19 October 1984, found guilty. Specification 4: larceny of 4 tires valued at $1,092.15 on 5 November 1984, found guilty. e. Charge V, Article 130: Specification 1: housebreaking on 15 October 1984, found guilty. Specification 2: housebreaking on 17 October 1984, found guilty. Specification 3: housebreaking on 9 November 1984, found guilty. f. Charge VI, Article 134, specification(s) steal mail matter on 17 October 1984, found guilty. 7. The appellate review, dated 11 December 1985, affirms the findings of guilty and affirms the sentence. 8. General court-martial order number 151, 28 April 1986, published by Department of the Army, United States Disciplinary Barracks, US Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, affirms general court-martial order number 50 and states the sentence of bad conduct discharge will be executed. 9. Order 100-02, 6 June 1986, discharges the applicant with an effective date of 13 June 1986 stating additional instructions as confinement discharge (bad conduct). 10. He was discharged on 13 June 1986, under the provisions of Army Regulation 635- 200 (Personnel Separations Enlisted Personnel), by reason of court-martial, other., in the rank/grade of PV1/E-1. His service was characterized as bad conduct. His DD Form 214 also shows: * item 12c (net active service this period) – 7 years, 9 months, and 10 days * item 13 (decorations, medals, badges, citations and campaign ribbons awarded or authorized) – Good Conduct Medal (3rd award), Army Commendation Medal, Army Service Ribbon, Overseas Service Ribbon (1), and Sharpshooter Rifle M- 16 Qualification Badge * item 26 (separation code) – JJD * item 27 (reentry code) – RE-4 * item 29 (dates of time lost during this period) – 23 April 1985 through 13 June 1986 11. On 14 December 2016, his request for discharge upgrade was denied by the ABCMR. The evidence presented did not demonstrate the existence of a probable error or injustice and the Board determined the overall merits of the case were insufficient as a basis for correction. 12. Four character references submitted by the applicant's counsel state in summary: a. From., states, in effect, her father, the applicant works hard at every job, he is a good employee and provides for his family. She requests the Board to consider changing his military status to honorable as her father has lived his life in service to the nation as a truck driver and an honorable man. b. From., states, in effect, his father, the applicant, is the hardest working, most kindhearted, God-fearing man he has ever known. He has witnessed him struggle to provide for his family, sometimes holding two or three jobs, but he managed. His father regrets what he has done. c. From , states, in effect, his father, the applicant, is organized, a leader, a hard- worker, and compassionate. He demonstrates good teamwork and leadership skills. He is confident his father's attitude and skills would make him a valuable contributor to any organization. d. From , states, in effect, the applicant and he shared mutual employment, after the applicant joined the position he could see the applicant was hard working and a dedicated individual, easy to work with and professional. 13. Regulatory guidance in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 3, where a soldier will be give an bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed and affirmed before the sentence is duly executed. 14. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and found the letters of reference provided by the applicant insufficient in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections described in the Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as shown in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the character of service. 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. ADMINISTRATIVE NOTE(S): The applicant’s DD Form 214 is missing entries required by regulation. As a result, correct the DD Form 214 by adding to item 18: * Continuous honorable active service from 770713-800130 * Soldier has completed first full term of service REFERENCES: 1. Army Regulation (AR) 635-200, in effect at the time, provides for the orderly administrative separation of Soldiers in a variety of circumstances. In addition, it maintains standards of performance and conduct through characterization of service in a system that emphasizes while still providing the suitability of persons to serve in the Army on the basis of their conduct and the ability to meet required standards of duty performance and discipline. a. Chapter 3 – This is the chapter that provides guidance and information on the information as it relates to the character of service and the description of separation. Characterization at separation will be based upon the quality of the Soldier's service, including the reason for the separation and guidance, subject to the limitations under the various reasons for separation. Paragraph 3-7 addresses characterization of service as follows: (1) Honorable discharge is appropriate when the quality of the Soldier’s service 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. An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. (2) Under honorable conditions (General) is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A General discharge may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. (3) Under other than honorable conditions discharge is an administrative separation from the Service. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances when the reason for separation is based on a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. In addition, when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army is another valid circumstance. Some examples provided by the regulation are disregard by a superior or customary superior-subordinate relationships. An under other than honorable conditions discharge will be directed by a commander exercising general court-martial authority. b. AR 635-200, paragraph 3-11, states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. c. AR 635-200, paragraph 1-13, states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest grade per AR 600-8-19, chapter 10. 2. Title 10, United States Code, section 871, Article 71 (Execution of sentence; suspension of sentence) provides in paragraph 71(c)(1), if a sentence extends to death, dismissal, or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and - a. the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court; b. such a petition is rejected by the Court of Appeals for the Armed Forces; or c. review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and— (1) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court; (2) such a petition is rejected by the Supreme Court; or (3) review is otherwise completed in accordance with the judgment of the Supreme Court. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness guided 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 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 provides standards and principles to guide Boards in the application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, the relative severity of the misconduct, mental and behavioral health conditions, an official governmental acknowledgment 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) AR20230003434 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1