ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170000089


APPLICANT REQUESTS: 

* upgrade his bad conduct discharge
* personnel appearance

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 is requesting to have his bad conduct discharge upgraded due to the length of time since he was discharged and based on his status before and during the discharge process.  He was admitted to the psychiatric ward at Fort Polk, LA.  At the time he was serving his country he was going through several different trials in his life; including a new baby, separation from his wife and mental health issues.

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

	a.  He enlisted in the Regular Army (RA) on 16 April 1986.

	b.  DA Form 4126 (Bar to Reenlistment Certificate), the applicant was recommended by his unit commander for a bar to reenlistment on 19 September 1988 for:

* article 15 for failure to go to appointed place of duty his punishment
* three counseling statements for failure to report to formation

   c.  On 28 September 1988, his immediate commander approved the bar to reenlistment.

   d.  On 2 March 1989, the bar to reenlistment was reviewed and the applicant’s unit commander recommended that it remain in effect due to he was in civilian confinement.

   e.  On 7 March 1989, his immediate commander approved the bar to reenlistment remaining in effect.

   f.  On 16 March 1989, he was convicted by a special court-martial of two specifications of unauthorized absence from the unit from 14 to 21 November 1989 and 8 December 1988 to 1 February 1989.  The court sentenced him to be reduced to the lowest enlisted grade private (PVT)/E-1, confined for 30 days, and discharged from the service with a bad conduct characterization of service.

	g.  On 10 April 1989, the convening authority approved the sentence and except for the part of the sentence extending to the bad conduct discharge will be executed.

	h.  On 18 May 1989 the Court of Military Review found the finding of guilty and the sentence approved by the convening authority correct in law and fact.  Accordingly those findings of guilty and sentence are affirmed.

	i.  Special Court Martial Order Number 47 dated 25 September 1989, the adjudged sentence to bad conduct discharge, confinement for 30 days, and reduction to grade E-1 had been affirmed having been complied with the bad conduct discharge will be executed that portion of the sentence extending to confinement had been served.

	j.  He was discharged from active duty on 24 October 1989.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under in accordance with the court-martial order that convicted him, with bad conduct discharge.  He completed 3 years, 1 month, and 27 days of active service with 300 lost days.  

	k.  His record is void of evidence that shows he/she applied for a discharge upgrade with the Army Discharge Review Board within 15 years of that board's statute of limitations. 

4.  In the processing of this case, a medical advisor opinion, dated 16 April 2019, was received from the Army Review Boards Agency Medical Advisor.  The advisory official stated that there is a nexus between the applicant’s reported behavioral health difficulties and the misconduct resulting in his discharge.  This opinion is based on the information provided by the Board and the Joint Legacy Viewer (JLV) as the Department of Defense electronic medical records (AHLTA) did not exist during his time in service.  Based on thorough review of available records the applicant received an in service diagnosis of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.  The records does not support posttraumatic stress disorder or other boardable behavioral health condition existed at the time of service or that he failed to meet medical retention standards.  His documented in service diagnosis does not mitigate the basis for separation, two instances of absent without leave.

5.  The applicant was sent the ex parte request dated 23 April 2019, but he did not respond.

6.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

7.  By regulation (AR 635-200, chapter 3), 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.

8.  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 warranted.  Based upon the findings of the medical advisory  that the applicant’s misconduct could be mitigated by a medical condition, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets for the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-11, of that regulation states 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.

3.  AR 15-185 (ABMCR) states ABCMR members will review all applications that are properly before them to determine the existence of an error.  The ABMCR will decide cases on the evidence of record.  It is an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABMCR may grant a formal hearing whenever justice requires.  

4.  AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.

	a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB).  

5.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any 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 the 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.  

ABCMR Record of Proceedings (cont)	 AR20170000089


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