ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 April 2019

	DOCKET NUMBER:  AR20160016322


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge (BCD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Personal Statement

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 requests a discharge upgrade in order to receive benefits.  He needs to obtain financial stability and be relieved of his past.  He was 22 years old at the time of his offense.  He is now 49 years old with a wife, 9 children, and 20 grandchildren.  He was a member of the 1st Cavalry Division who excelled to the rank of specialist (promotable) and was the battalion executive officer’s driver.  Punishment should not deprive one of a decent living standard.  He has had several mental setbacks.  
    
3.  Special Court-Martial Order Number 20, dated 21 September 1990, shows he pled guilty and was found guilty of:
* Unauthorized absence from 8 October 1989 to 2 June 1990 and from                 15 June 1990 to 21 June 1990
* Larceny of bracelet worth over $400.00

4.  Sentence was adjudged on 23 August 1990.  The court sentenced him to confinement for 4 months, forfeiture of $446.00 per month for 4 months, reduction to the rank/grade of private/E-1, and a BCD.
5.   On 3 October 1990, he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-11, as a result of court-martial with a BCD.  His record is void of any awards for valor.
6.  On 25 April 2018, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) medical advisor/psychologist, who states, a review of the available documentation found no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses, which led to his separation from the Army via Court Martial.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

7.  On 6 March 2019, the applicant was provided a copy of the advisory for comment or rebuttal.  He did not respond.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides a Soldier will be given a BCD 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.

9.  In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions, which include mental setbacks, and the medical advisory were carefully considered.  The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation.  He was provided the opportunity to rebut the advisory; however, he did not respond.  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.  The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.  He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration.



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. 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 sets forth the basic authority for the separation of enlisted personnel.  It states a Soldier will be given a BCD 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.  It provides: 
 
     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 Soldier will be given a BCD 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.  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 BCM/NRs 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.  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.  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)	 AR20160016322
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