ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20160016043


APPLICANT REQUESTS: an upgrade of his characterization of service from bad conduct discharge to under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

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, that he is sick with bronchitis/asthma and applying for disability through the Social Security Administration in Georgia.  He really needs to upgrade his discharge so that he may receive benefits.  He has been a model citizen since leaving the military under such difficult and disturbing conditions.  He states that his unbearable release circumstances were self-defense.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 12 June 1984.

	b.  His DA Form 2-1 (Personnel Qualification Record) reflects that he was confined for a period of 558 days from 2 June 1985 to 11 December 1986.

	c.  General Court Martial Order Number 21, dated 13 December 1985, reflects that the applicant was found not guilty of premeditated murder, but found guilty of a battery, unlawfully killing another service member, by stabbing him in the back with a knife.  His sentence consisted of a bad conduct discharge, forfeiture of all pay and allowances, two years confinement, and reduction to private/E-1.

	d.  On 13 December 1985, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to the appellate authority for review.

   e.  On 16 May 1986, the United States Army Court of Military Review declared the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence are affirmed.

	f.  General Court-Martial Order Number 809, dated 17 November 1986, ordered the sentence affirmed.  The part of the sentence extending to confinement has been served, and the bad conduct discharge will be executed.

	f.  He was discharged on 12 December 1986 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge).  His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he completed 11 months and 13 days with 558 days from 2 June 1985 to 11 December 1986.  He was awarded or authorized:

* Marksmanship Qualification Badge with Rifle Bar
* Marksmanship Qualification Badge with Hand Grenade Bar
* Army Service Ribbon

4.  On 6 May 2019, the Army Review Boards Agency medical advisor reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  Review of the applicant's electronic Veterans Affairs medical record indicates that the applicant is not service connected.

	b.  Based on the available medical record, the applicant did not meet procurement standards in accordance with Chapter 2, AR 40-501 (Standards of Fitness), for asthma which existed prior to service (EPTS).  The applicant however met retention standards in accordance with Chapter 3, AR 40-501, for asthma since they were able to perform all military training and duty, prior to separation.

	c.  Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant's record to Integrated Disability Evaluation System for consideration of military medical retirement is not indicated at this time.  In addition, there are no medical or behavioral conditions that would support a change in the character of the applicant's discharge.

5.  On 14 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

6.  By regulation, AR 635-200, in effect at that time, a Soldier 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.

7.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the serious, criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

	a. Paragraph 3-11 provided that a Soldier 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.

	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 as 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.  AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments.  It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations.

5.  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.

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)	 AR20160016043


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