ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 April 2019

	DOCKET NUMBER:  AR20160015236


APPLICANT REQUESTS: upgrade of his bad conduct discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 received a bad conduct for another Soldier saying he was selling hash.  He was never caught with any drugs nor was there any evidence of this.  He served 13 months and put his life on line for our country and had another Soldier lie for their own issues.  They were getting high and passed the blame to someone else so they did not have to face the consequences 

3.  Review of the applicant's service records shows: 

	a.  He enlisted in the Regular Army on 18 March 2004. 

	b.  On 23 October 2005, in Iraq, consistent with his pleas, he was found guilty and convicted by a general court-martial of: 

* one specification of striking his superior commissioned officer in the torso with his shoulder and body 
* one specification of willfully disobeying a lawful order
* two specifications of resisting apprehension by a person authorized to apprehend him 
* one specification of stealing a digital printer from the Army and Air Force Exchange Service 
* one specification of unlawfully shoving a person into the door with his body 
* one specification of making a false official statement 
* one specification of wrongfully possessing hashish
* one specification of violating general Order Number 1 by wrongfully possessing alcohol
* one specification of violating general Order Number 1 by wrongfully possessing and consuming alcohol
* one specification of wrongfully possessing multiple packets of valium 

	c.  The court sentenced him to a forfeiture of $800 pay per month for 18 months, confinement for 18 months, and a bad conduct discharge. 

	d.  On 14 June 2006, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

	e.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

	f.  General Court-Martial Order Number 188, issued by the U.S. Army Field Artillery Center, Fort Sill, OK, on 21 August 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

	g.  The applicant was discharged on 18 February 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  

		(1)  He completed 3 years, 9 months, and 17 days of active military service with lost time from 23 October 2005 to 6 December 2006.

		(2)  His service was characterized as bad conduct and he was assigned separation code JJD.  His DD Form 214 also shows:

		(3)  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal. Iraq Campaign Medal with star, and Army Service Ribbon. 

4.  By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the relatively short term of military service completed prior to misconduct beginning, to include some misconduct being serious in nature, the Board found that the characterization of service received at the time of discharged was appropriate.
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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	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.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances.

	d.  A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  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.

4.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department.

5.  Army Regulation 635-5-1 (Separation Program Designator Codes) states SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty.  SPD code JJD is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.

6.  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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.  


ABCMR Record of Proceedings (cont)	 AR20160015236


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