ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  16 April 2019

	DOCKET NUMBER:  AR20160013966


APPLICANT REQUESTS:  His bad conduct discharge (BCD) be upgraded to an under 
honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)

FACTS:

1.  The applicant states he would like his discharge upgraded to allow him to use his 
Montgomery GI Bill educational benefits and to obtain medical and psychiatric care.  He 
contends he completed his first term of enlistment and reenlisted at Fort Benning, GA. 

2.  The applicant enlisted in the Regular Army on 21 July 2009.  

3.  General Court-Martial Order Number 15, issued by the U.S. Army Maneuver Center 
of Excellence, Fort Benning, GA on 4 November 2013, shows the applicant was found 
guilty, in accordance with his plea, of having sexual intercourse with a female between 
the ages of 12 and 16, between on or about 7 July 2012 and on or about 17 July 2012, 
and of adultery during the same period.  The sentence was adjudged on 18 April 2013 
and the applicant was sentenced to reduction to pay grade E-1, confinement for a 
period of 22 months, and separation from service with a BCD.  

4.  The General Court-Martial Convening Authority (GCMCA) approved the findings and 
sentence on 24 October 2013, including the automatic regulatory requirement of a total 
forfeiture of pay and allowances.  The record of trial was forwarded to the U.S. Army 
Court of Criminal Appeals for appellate review.

5.  The GCMCA modified his actions on 4 November 2013, by substituting a waiver of 
the automatic forfeiture of all pay and allowances with the direction that those forfeitures 
be paid to the applicant's children, effective between that date and 19 April 2014.

6.  The applicant was released from confinement on 18 April 2014 and placed on 
excess leave effective the following date.

7.  The U.S. Army Court of Criminal Appeals' affirmation of findings and sentence is not 
available for review.

8.  The applicant was discharged on 15 January 2015.  The DD Form 214 (Armed 
Forces of the United States Report of Transfer or Discharge) he was issued shows he 
was discharged under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 3, by order of court-martial.  His  
DD Form 214 shows:

*	his characterization of service was bad conduct
*	he was discharged in the rank/grade of private/E-1
*	he had 4 years and 2 days of net active service
*	service in Iraq from 15 February 2010 through 1 October 2010
*	he had not completed his first full term of service
*	he had 1 year, 5 months, and 23 days of lost time, and 235 day of excess leave 

9.  The applicant's record does not contain a copy of a reenlistment contract or 
extension of enlistment agreement.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered.  The Board applied Department of Defense standards of liberal 
consideration to the complete evidentiary record and did not find any evidence of error, 
injustice, or inequity.  He did not provide character witness statements or evidence of 
post-service achievements for the Board to consider.  Based upon the record, the Board 
agreed that the applicant's discharge characterization was warranted as a result of the 
misconduct.

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.


ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 
prescribes the policies and procedures for correction of military records by the Secretary 
of the Army, acting through the ABCMR.  The regulation provides that the ABCMR 
begins its consideration of each case with the presumption of administrative regularity.  
The applicant has the burden of proving an error or injustice by a preponderance of the 
evidence.

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  Paragraph 3-7a 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.

	b.  Paragraph 3-7b provides that 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 3–10 provides that a Soldier will be given a BCD pursuant only to an 
approved sentence of a general court-martial.  The appellate review must be completed 
and the affirmed sentence ordered duly executed.  Questions concerning the finality of 
appellate review should be referred to the servicing staff judge advocate.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160013966
	
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