ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170003671 APPLICANT REQUESTS: an upgrade of his bad conduct discharge 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: a. He never attempted to do anything with his discharge status previously. At the time, he was a young kid that was not mature enough to understand how life would be affected based on his decisions. b. He is now a totally different grown-up adult male with different values and have learned many life’s lessons. At age 51, he now plans to continue his education towards and working towards a bachelor’s degree and purchasing a home for his family. He would like to have some military benefits to assist with this quest. He served his country and was a vital part of several mission orientated tasks and he is still an advocate for youths to join the United States Army. 3. A review of the applicant’s service record shows: a. The applicant has prior service and enlisted in the Regular Army on 15 September 1983 according to his DD Form 214 (Certificate of Release or Discharge from Active Duty). b. On 10 January 1990, he was convicted by a general court-martial of one specification of stealing $1,700.00 in US currency and a personal check of a value under $100.00 dollars. The court sentenced him to be reduced to the grade of private/E-1, confined for 3 months, forfeiture of $400.00 pay for a period of 3 months and discharged from the service with a bad conduct discharge. c. On 20 February 1991, the sentence was approved and except for the part of the sentence extending to the bad conduct discharged, will be executed. d. General Court-Martial Order Number 40, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, on 3 December 1991, shows the sentence was finally affirmed and the bad conduct discharge was ordered executed. e. The applicant was discharged on 13 January 1992. His DD Form 214 shows he was discharged in the rank/grade of Private/E-1, as a result of court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 with a bad conduct discharge. He completed 4 years, 9 months and 26 days of active service during this period. He was awarded or authorized the: * Army Achievement Medal (2nd OLC) * Good Conduct Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle (M16) * Marksman Marksmanship Qualification Badge Grenade * Driver and Mechanic Badge Driver w/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 his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon seriousness and large amount of money within the theft, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 provides for the separation of enlisted personnel: a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Paragraph 3-7c 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, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 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 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. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation and job history * Availability of other remedies * Whether misconduct may have been youthful indiscretion * Character references //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003671 3 1