ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20170002331


APPLICANT REQUESTS:  upgrade of her bad conduct discharge to honorable.

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 she was court martialed for writing bad checks and received a bad conduct discharge.  At the time, she was stationed in Korea and became addicted to gambling.  She realizes now that writing bad checks was a foolish mistake on her part.  Since her discharge from the Army, she has been a very productive citizen.  She returned to school and obtained a Master’s degree in Healthcare Administration.  She is currently employed in the healthcare industry.  Her one regret is her behavior in the Army and the bad conduct discharge she received.  Her actions were foolish and did not and still do not reflect the person she is.  The consequences of her actions have been a part of her life since her discharge.  While she made some foolish decisions, she has learned from her mistakes and stayed out of trouble and created a stable and productive life for herself.  She is requesting an upgrade of her bad conduct discharge to honorable.

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

	a.  She enlisted in the Regular Army on 6 October 1994.

	b.  On 22 January 1996, the applicant was convicted by a general court-martial of four specification of writing bad checks as follows: 

* specification one unlawfully draw and utter 26 checks between 17 July 1995 and 16 August 1995 
* specification two unlawfully draw and utter 12 checks between 29 July 1995 and 21 August 1995 
* specification four unlawfully draw and utter a check on 29 July 1995 
* specification five unlawfully draw and utter 3 checks between 4 September 1995 and 5 September 1995 

	c.  The court sentenced her to confinement at hard labor for 5 months, reduction to private/E-1, and a bad conduct discharge.  

	d.  On 30 November 1995  the convening authority approved the sentence, and except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to the appellate authority. 

	e.  On 22.January the U.S. Army Court of Military Review affirmed the findings of guilty, except for the bad conduct discharge, will be executed.

	f.  On 24 December 1997 General Court Martial Order 290, was finally affirmed, confinement has been served and bad conduct discharge will be executed. 

	g.  The applicant was discharged on 21 January 1998 in the rank/grade of private/  E-1.  Her DD Form 214 shows she was discharged due to conviction by court-martial with an under other than honorable conditions characterization of service (AR 635-200) Personnel Separations-Enlisted Personnel, chapter 3.  She was issued a Bad Conduct Certificate.  It also shows she was awarded or authorized,

* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Grenade bar
* Marksman Marksmanship Qualification Badge with Rife Bar

4.  By regulation, AR 635-200, 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.

5.  In reaching its determination, the Board can consider the applicant’s petition and her 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 short term of honorable service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that she has learned and grown from the events leading to her 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 (Personnel Separations – Enlisted Personnel), sets forth 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 3-7c (Under other than honorable conditions) sates 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, homosexuality, security reasons, or for the good of the service.

	d.  Paragraph 3-10 (Bad Conduct discharge) states 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.  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.
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 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)	 AR20170002331


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