IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230004035 APPLICANT REQUESTS: In effect, to upgrade his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, undated 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 he was proud and honored to have had the opportunity to serve his country in the U.S. Army. His career was advancing in his military occupational specialty of 63G10 (Fuel and Electrical Systems Repairer). He was good at what he did and enjoyed his job immensely. He moved up the ranks quickly and considered extending his tour and reenlisting. However, that did not happen because, at the time, he felt he was experiencing discrimination from his commanding officers. Because of these perceived discriminations, he made the immature decision to disobey a direct order. At the time, he was given the option to go to the retraining brigade in Fort Riley, KS, or leave the Army. Since he believed an assignment to the retraining brigade was punishment, he chose to leave the Army, a decision that has haunted him for 40 years. He was proud to have served and is honored to be a veteran. He hopes the board will grant him relief. 3. The applicant enlisted in the Regular Army on 30 October 1979, for four years. 4. The record contains a series of documents addressing the applicant's hospital stay, absence without leave (AWOL), and military confinement status: a. Two DA Forms 4187 (Personnel Actions) show, from 24 to 26 December 1980, his unit reported him at the hospital due to treatment for overdose. b. DA Forms 4187 show, from 20 February to 14 April 1981, his unit reported him AWOL on six separate occasions. c. Two DA Forms 4187 show, effective 14 April 1981, the unit reported the applicant surrendered to military police and on 15 April 1981, he was placed in pre-trial confinement until he was granted excess leave on 15 June 1981. 5. On 15 July 1981, the applicant waived a physical evaluation/examination prior to separation. 6. Special Court-Martial Order (SPCMO) Number 97, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, on 17 July 1981, shows: a. The applicant pled guilty to and was found guilty of: * four specifications of failure to go at the time prescribed to his appointed place of duty, between on or about 3 February 1981 and on or about 17 February 1981 * five specifications of AWOL, between on or about 3 February 1981 and on or about 14 April 1981 * two specifications of disobeying a lawful order, on or about 19 February 1981 and on or about 9 March 1981 b. The court sentenced him to confinement at hard labor for 30 days, forfeiture of $334.00 pay per month for six months, reduction to E-1, and to be discharged from the service with a BCD. c. On 17 July 1981, the convening authority approved the court’s sentence, but deferred the forfeiture of pay for six months until such time the sentence was ordered executed. The record of trial was forwarded to the appellate authority for appellate review. 7. A memorandum of opinion, U.S. Army Court of Military Review, before three Appellate Military Judges, dated 18 September 1981, states: Counsel for the applicant declined to file pleadings. Having 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 be approved, such findings of guilty and the sentence are affirmed. 8. SPCMO Number 182, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, on 15 December 1981, shows the sentence having been affirmed, it would be duly executed. 9. The applicant was discharged on 23 December 1981 under the provisions of Army Regulation (AR) 635-200, Chapter 11 (Dishonorable and Bad Conduct Discharge), with a characterization of service of bad conduct. His DD Form 214 shows: a. He completed 1 year, 10 months, and 16 days of net active service. b. He received a Separation Program Designator Code of “JJD” and Reenlistment Code of “3” and “3B.” c. He had lost time for the following periods: * 20 February 1981 to 25 February 1981 * 4 March 1981 to 5 March 1981 * 16 March 1981 to 21 March 1981 * 25 March 1981 to 29 March 1981 * 30 March 1981 to 13 April 1981 * 15 April 1981 to 14 June 1981 10. On 7 November 1990, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB found his discharge to be both proper and equitable under the circumstances and voted to deny his request on 7 January 1981. 11. 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. 12. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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 the applicant provided no evidence of post-service achievements or letters of reference 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. 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, 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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 states an enlisted person 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. 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230004035 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1