ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 November 2019 DOCKET NUMBER: AR20170004320 APPLICANT REQUESTS: an upgrade to his bad conduct discharge characterization APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter 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/provides a detailed self-authored statement which is attached describing the incident and his military and personal experiences. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 June 2003. b. Special Court-Martial Order Number 8, dated 4 October 2004, shows he was found guilty of one specification on or about 20 January 2004 for without authority, absenting himself from his unit and did remain so absent until on or about 29 January 2004. One specification of on or about 22 January 2004, through design miss movement, in which the accused was required in the course of duty to move. The court sentenced him to be reduced to the grade of E-1, forfeiture of $795.00 pay for eight months, confined for eight months and to be discharged from the service with a bad conduct discharge. c. The applicant’s service record is void of the appellate review; however, according to Special Court-Martial Order Number 37.6, dated 19 May 2005, the provisions of Article 71(c) having been complied with the sentence will be duly executed. d. He was discharged from active duty on 7 February 2007. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) on 635-200, paragraph 3-11, section IV, by reason of court-martial. This form further lists his character of service as "bad conduct." He completed 3 years and 26 days of active service, with lost time from 20 January to 29 January 2004, and from 10 May to 29 November 2004. He was awarded or authorized the National Defense Service Medal. 4. He applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service and after considering the evidence, the ADRB denied his request. 5. By regulation, AR 635-200, chapter 3-11 (bad conduct discharge) states 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. 6. The Board should 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 warranted. Based upon the isolated incident which resulted in the applicant’s discharge, as well as a lack of any evidence that the applicant had an opportunity to correct his misconduct prior to separation action being initiated, the Board found the punishment of a punitive discharge too severe and excessively harsh. Based upon the misconduct leading to the applicant’s separation, the Board recommended granting clemency by upgrading the applicant’s characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X: X: X GRANT FULL RELIEF : : : 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 Honorable Conditions (General). 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 states that a general discharge (GD) 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 3-11 (BCD) states a Soldier will be given a BCD 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. 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) AR20170004320 4 1