ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170001684 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to general, under honorable conditions. 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 was charged with fraud for simply over-drawing his checking account. He stated he had overdraft protection with his bank and automatic deposit. He also stated that his commanding officer was upset with him for not reenlisting and served as a basis for his court-martial and ultimate discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 20 October 1970. b. He served in Germany from 9 December 1971 to 9 September 1972. c. On 22 November 1972, he accepted nonjudicial punishment under the provisions of Article 15 for being absent without leave from 8 November 1972 to 16 November 1972. His punishment included reduction to specialist four (SP4)/E-4, suspended for 6 months. d. On 17 April 1973, he was reduced to SP4/E-4. e. On 14 June 1973, he was convicted by a general court-martial for six specifications of writing fraudulent checks. The court sentenced him to a bad conduct discharge, confinement at hard labor for 7 months, forfeiture of all pay and allowances, and reduction in grade to E-1. a. f. General Court-Martial Order Number 11, dated 11 July 1973 approved the sentence and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate of the Army for appellate review. g. On 3 October 1973, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. h. General Court-Martial Order Number 1111, dated 19 November 1973 affirmed the sentence to a bad conduct discharge. The provisions of Article 71(c) had been complied with, and the bad conduct discharge would be duly executed. i. The applicant was discharged on 6 December 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) due to conviction by a court-martial with an under other than honorable conditions characterization of service and he was issued a bad Conduct Discharge Certificate (the bad conduct discharge was not a characterization of service at the time). * he completed 2 years, 6 months, and 18 days of active service with 165 days lost * he was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 4. By regulation/directive: a. 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. b. 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 multiple UCMJ offenses which led to the applicant’s separation and a lack of character evidence presented by the applicant to show he has learned and grown from those events, the Board concluded 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. 1535874 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, provides for the separation of enlisted personnel. a. Paragraph 1-9d states that an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-9f states 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, unfitness, homosexuality, or for security reasons. d. Paragraph 1-10 states 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. 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 UCMJ, 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 UCMJ 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. 4. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal 2. 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 based on 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.