ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  12 August 2019

	DOCKET NUMBER:  AR20170004865


APPLICANT REQUESTS:  

*	upgrade of his bad conduct discharge 
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or discharge from Active Duty)

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 that he is requesting an upgrade of his discharge, it was a bad 
mistake that he made at a young age.  He paid the price for not cooperating with 
authority and providing names of other involved parties.  He never received disciplinary 
action while he was incarcerated and received an early release for good behavior.  He 
has never been in trouble with the law since being discharged from the service.  It has 
been 39 years since he made this mistake.  He is now 63 years of age and close to 
retiring.  He has been a God fearing man with a wife and grown children and 
grandchildren.  He is a good citizen that does not smoke, drink, or do drugs.

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

	a.  He enlisted in the United States Army Reserve (USAR) Control Group Delayed 
Entry on 16 June 1975.

	b.  He enlisted in the Regular Army (RA) on 27 June 1975.

	c.  He served in Germany from 16 December 1975 to 9 February 1978 as reflected 
on DA Form 2-1 (Personnel Qualification Record – Part II) item 35 (Record of 
Assignments).

	d.  He accepted non-judicial punishment on 26 August 1977 for without authority 
failed to go at the time to his appointed place of duty.  His punishment included 
reduction to the grade of private first class (PFC)/E-3 (suspended until 
24 December 1977).

	e.  On 13 September 1977, the suspension of punishment for forfeiture of $50 and 
reduction to the grade of PFC imposed against the applicant was vacated.  The 
unexecuted portions of the punishments was duly executed.

	f.  He accepted non-judicial punishment on 11 November 1977 for willfully 
disobeying a lawful order and without authority failed to go at the time prescribed to his 
appointed place of duty.

	g.  DA form 4126-R (Bar to Reenlistment Certificate), on 17 November 1977, the 
applicant’s unit commander recommended a bar to reenlistment be imposed on the 
applicant for two Article 15s and numerous counseling for performance and disciplinary 
issues.

	h.  On 6 December 1977, the applicant’s brigade commander approved the bar to 
reenlistment.

	i.  Special Court-Martial Order Number 36 dated 7 April 1978, the applicant was 
convicted of one specification of wrongful possession of a habit forming narcotic drug 
and one specification of wrongfully selling a habit forming narcotic drug.  His sentence 
was reduction to the grade of private (PVT)/E-1, forfeiture of $265 per month for 
6 months, confined to hard labor for 6 months and to be discharged from the service 
with a bad conduct discharge.  The sentence was adjudged on 2 February 1978.  The 
convening authority approved the sentence and pending the appellate review the 
applicant was confined.

	j.  On 21 September 1978, the appellate review found the approved findings of guilty 
and the sentence was correct in law and fact, and having determined on the basis of the 
entire record was approved, such findings of guilty and the sentence were affirmed.  

	k.  Special Court-Martial Order Number 86 dated 16 November 1978, the sentence 
had been complied with and the sentence was duly executed.  The portion of the 
sentence pertaining to confinement was served.

	l.  He was discharged from active duty on 12 November 1986 with an under other 
than honorable characterization of service and a bad conduct discharge (Special) 
certificate under the provisions of chapter 3 (Character of Service/Description of 
Separation, section IV (Dishonorable and Bad conduct Discharge), Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel) and with the grade of PVT.  
His DD Form 214 shows that he completed 3 years, 3 months, and 6 days of active 
service with 2,962 lost days.

4.  There is no evidence the applicant applied to the ADRB within its 15-year statute

5.  By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before 
the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice 
requires.

6.  By regulation 653-200 (Personnel Separations – Enlisted Personnel), 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.

7.  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 it could reach a fair and equitable decision in the case without a 
personal appearance by the applicant.

Additionally, based upon the misconduct which led to the applicant’s separation 
involving selling drugs to others, as well as the applicant failing to provide evidence of 
post-service character evidence to show that he has learned and grown from the events 
leading to his discharge, the Board concluded that the characterization of service 
received at the time of separation 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), 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 Soldier’s service generally has 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 Soldier whose military records is satisfactory but not sufficiently meritorious to warrant 
an honorable discharge.

	c.  Paragraph 3-7c (Under Other Than Honorable Conditions) 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, homosexuality, security reasons, or for the good of the service.

	d.  Chapter 3 section IV (Dishonorable and Bad conduct Discharge), of that 
regulation 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.

3.  AR 15-185 (ABMCR) states board members will review all applications that are 
properly before them to determine the existence of an error or an injustice.  The 
ABMCR decides cases on the evidence of record.  It is not an investigative body.  The 
ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a 
hearing before the ABCMR.  The Director or the ABMCR may grant a formal hearing 
whenever justice requires.  

4.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military 
Department may correct any 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 the Military Department.



ABCMR Record of Proceedings (cont)	 AR20170004865

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