ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170003521 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored 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 was court martialed for no reason, or error of his own. In 1988, while in Germany, many troops were intentionally drafting bad checks. He was not one of them. His bank was depositing his pay into savings instead of checking as he specified. His Commander informed him that he was aware that he was writing bad checks, so he called his parents from his commander’s office and spoke to his mother in reference to the bad checks. His mother went to the bank, Ohio Citizens Bank and verified they were erroneously depositing his pay into his savings account instead of his checking account. Days later he was told to report to the command sergeant major’s (CSM) office, even though the banking error was of no fault of his own. He was told by the CSM, that he would face court martial because of the bad checks and that he was going to be made an example of. He states that’s how his military career ended, with him being kicked out with a BCD, for something he did not do. 3. A review of the applicant’s service records shows the following: a. His DD Form 4 (Enlistment/Reenlistment Document) reflects that he enlisted in the Regular Army (RA) on 11 February 1986. a. b. His DA Form 2-1 (Personnel Qualification Record) indicates that he served in Germany from 5 July 1986 to 11 May 1987. It also reflects that he was confined for 101 days from 12 May 1987 to 20 August 1987. c. On 12 May 1987, he was convicted by a special court-martial of one specification of wrongfully making and uttering worthless checks in the amount of $2,225.00. The court sentenced him to reduction to E-1/Private, forfeiture of pay for five months, confinement for four months and a bad conduct discharge. d. On 15 June 1987, the convening authority approved the sentence and except for the bad conduct discharge ordered it executed. The record of trial was forwarded to the Judge Advocate General for appellate review. e. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 31 August 1987. f. Special Court Martial Order 16, dated 1 February 1988, which states SCMO 24 was finally affirmed, confinement has been served and bad conduct discharge will be executed. g. He was discharged from the Army on 11 February 1988, under the provision of AR 635-200 ( Personnel Separations – Enlisted Personnel), Chapter 3. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 8 months and 20 days with 2 years, 11 months, with 101 days of time lost from 12 May 1987 to 20 August 1987. It also shows in: * Item 13 (Decorations, Medals. Badges. Citations and Campaign Ribbons Awarded or Authorized): Army Service Ribbon, Marksman Marksmanship Badge with Rifle Bar (M16), and Expert Marksmanship Badge with Hand Grenade Bar * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Bad Conduct * item 25 (Separation Authority), Army Regulation 635-200, Chapter 3, Sec IV * item 28 (Narrative Reason for Separation), As a result of court martial 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 his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the amount of money involved in the bad checks uttered, as well as the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, 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: 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). 5/28/2019 X CHAIRPERSON Signed by: 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. 1. 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.