IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230004376 APPLICANT REQUESTS: The applicant, the spouse of the deceased former service member (FSM), requests reconsideration of his previous request for upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Character Reference Letters (3) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * FSM’s Certificate of Death * Applicant’s Marriage License FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013743 on 18 March 2008. 2. The applicant states, in effect, her late husband was young and had an altercation while in the Army. The FSM told her that the things that were put in his records did not happen like it was written down. The person that the FSM was fighting was a bully and he was tired of being picked on, so he finally retaliated. He had witnesses but none of them were allowed to testify at the court-martial. 3. The FSM enlisted in the U.S. Army Reserve on 15 March 1974. He was involuntarily ordered to active duty on 2 August 1979. 4. On 21 September 1979, the FSM was given a letter of reprimand for the purchase and transportation of liquor in a military vehicle. 5. On 5 February 1980, the FSM accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 30 January 1980. His punishment included forfeiture of $100.00 pay for one month and 14 days restriction and extra duty. 6. On 16 June 1980, the FSM was reported as absent without leave (AWOL) and remained absent until he returned to military authorities on 11 July 1980. 7. On 28 July 1980, the FSM accepted NJP under Article 15 of the UCMJ, for going AWOL from on or about 16 June 1980 until on or about 11 July 1980. His punishment included reduction in grade to E-1, forfeiture of $200.00 pay per month for two months, and 30 days restriction and extra duty. 8. Before a special court-martial on 13 February 1981, at Fort Carson, CO, the FSM was found guilty of one specification of committing an assault upon his superior noncommissioned officer, by cutting him in the head with means likely to produce grievous bodily harm. 9. The court sentenced him to a BCD, reduction in grade to E-1, forfeiture of $334.00 pay per month for five months, and confinement at hard labor for five months. The sentence was approved on 31 March 1981, and the record of trial was forwarded for appellate review. 10. The U.S. Army Court of Military Review affirmed the findings of guilt and the sentence on 21 May 1981. 11. On 10 June 1981, the FSM was placed on excess leave. 12. On 29 July 1981, the U.S. Court of Military Appeals denied the FSM’s petition for a review of the decision of the U.S. Army Court of Military Review. 13. Special Court-Martial Order 111, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO on 18 August 1981, noted that the FSM's sentence had been affirmed and ordered the BCD duly executed. 14. The FSM was discharged on 23 October 1981. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial. His service was characterized as bad conduct. He was assigned Separation Code JJD and Reentry Code 4. He was credited with 1 year, 8 months, and 21 days of net active service this period with 184 days of lost time. 15. The FSM petitioned the ABCMR requesting upgrade of his BCD. On 18 March 2008, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the FSM’s records. 16. The applicant provides the following (provided in entirety for the Board): a. The FSM’s death certificate showing that he died on. b. Three character reference letters that collectively attest to the FSM’s respect for others, his joy in making others laugh, and the love he had for his family. 17. 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. 18. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and the FSM’s service record in accordance with the published equity, injustice, or clemency 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 former service member’s (FSM) 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 and the FSM’s available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 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. The Board found the FSM’s character letters of support noteworthy. 2. However, the Board agreed the FSM’s serious misconduct of assault with intent to commit bodily harm against his superior officer could not be mitigated. Furthermore, the Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 8 months, and 21 days of net active service this period with 184 days of lost time. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the FSM’s bad conduct discharge. Based on the preponderance of evidence the Board found amending the previous Board decision is without merit and denied relief. 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 AR20070013743 on 18 March 2008. 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 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 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 11, paragraph 11-2, provided that a member would be given a BCD pursuant only to an approved sentence of a general court-martial 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// ABCMR Record of Proceedings (cont) AR20230004376 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1