ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170004319


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge to general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* Self-Authored Statement, dated, 28 February 2017
* Statement of Residency, United Mission Ministries

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.  Although he could not complete his full enlistment, an injustice was done to him that should be corrected.  At the time of his statement, he resided in a Norfolk, VA area shelter as detailed in his letter of residency.  He is writing this letter because he sincerely needs clemency.  His life has not been the greatest, he was adopted, neglected, and had a negative outlook on life.  It all changed after his decision to enlist in the U.S. Army as Chemical Operations Specialist (54B).  He was proud to serve his country, save money for his education, and become a role model for his younger siblings.  The military training instilled discipline, helped him establish a goal of traveling the world, and to retire after 20 years with an honorable discharge.

	b.  His assignment to Fort Bragg would prove challenging.  A series of negative events eventually caused him to be court-martialed, confined and ultimately discharged from the service.  He states his refusal to attend airborne school cause him to be somewhat of an outcast in his unit.  The majority of his unit members were airborne qualified.  They made it clear, that if he did not attend airborne training, his stay at Fort Bragg would be uncomfortable.  After performing numerous details and receiving an Article 15, he felt the pressure mounting.  He asked for a unit transfer but it was denied.  He received a speeding ticket soon after purchasing a vehicle.  He attempted to pay the ticket however, the lines were extremely long causing him to be late for a unit formation.  Although he tried to inform his leadership he was met with another Article 15.  He executed his punishment and/or extra training but was ridiculed by his platoon sergeant in the presence of a new Soldier to the platoon.  The actions of his platoon sergeant caused him frustration in which he lost his bearing.  His actions would amount to a charge of disrespect to a noncommissioned officer and assault upon a noncommissioned officer which he disputes.  After the incident, he departed the installation by privately owned vehicle to clear his head.  Upon return, the military police arrested him for assaulting a noncommissioned officer and placed him in pre-trial confinement at Camp Lejeune, NC.

	c.  Prior to joining the military, he had never been in trouble or had a record despite the harsh environment he came from.  He was convicted, reduced to a private, jailed and given a bad conduct discharge.  After 8 months, he was released and banned from the military post even though his possessions were there in storage.  He felt betrayed by the government whom he swore to protect and serve.  Many of his fellow unit members were surprised as they learned of his unfavorable actions and thought it to be out of character.  He was reared by his grandmother which inspired him to never hit a woman.  He thinks the sergeant wanted to make an example out of him and he had no knowledge of its lasting impact on his life.

	d.  He lost respect for the government after his discharge and became more negative towards life after he was arrested for using drugs.  At one point in his life he was contemplating suicide.  After 10 years of living a hellish life, he decided a positive change was needed.  He found a good job, began attending church and working on his advancing his education.  He recently graduated Tidewater’s Community College trucking program.  He has been completely honest and wishes he had handled the situation more maturely.  He guarantees if anyone peered into his records and court-martial documents they could verify everything spoken was the truth.  He thanks the Board for reviewing his statement with an open mind and heart.  He prays the Board considers upgrading his discharge.  He would like to move forward in life and regain his military honor and respect.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 1 August 2001.

	b.  On 27 October 2002, he was placed in pre-trial confinement at Camp Lejeune, NC. 

	c.  On 1 November 2002, he was convicted by Special Court-Martial, for:

* one specification of disrespect language to a noncommissioned officer
* one specification of unlawful assault on a noncommissioned officer
* one specification of without authority, go from his appointed place of duty

	d.  The court sentenced him to a bad conduct discharge, confinement for 6 months, and forfeiture of $737.00 pay per month for 6 months.  On 1 November 2002, he was transported to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY to serve his sentence.

	e.  Special Court-Martial Order Number 1, dated 9 January 2003 approved the sentence and, except for the part of the sentence extending to a bad conduct discharge, will be executed.  The accused will be credited with 35 days confinement against the sentence to confinement.  The record of trial was forwarded to the Judge Advocate of XVIII Airborne Corps for appellate review.

	f.  On 14 March 2003, the applicant was released from confinement and placed on excess leave to his home of record pending the appellate review of his court-martial.

	g.  On 2 April 2004, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

	h.  Special Court-Martial Order Number 160, dated 27 August 2004 affirmed the sentence to a bad conduct discharge.  That portion of the sentence pertaining to confinement had been served.  Article 71(c) had been complied with, and the bad conduct discharge would be duly executed.

	i.  On 19 October 2004, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 4 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) with a bad conduct discharge.  He completed 2 years, 10 months, and 1 day of active service with 136 days of lost time.

4.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the applicant’s statement concerning mitigating reasons for the misconduct which led to the applicant’s separation, the Board concluded that upgrading the discharge from a punitive discharge to an administrative separation would be appropriate.  For that reason, the Board recommended upgrading the characterization of service from Bad Conduct to Under Other Than Honorable Conditions.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	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 Oher Than Honorable Conditions.
	 
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 (Active Duty Enlisted Administrative Separations), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states that 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 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 satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c states that 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 the service in selected circumstances.

	d.  Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) 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 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.


ABCMR Record of Proceedings (cont)	 AR20170004319


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