ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 September 2019

	DOCKET NUMBER:  AR20170004937


APPLICANT REQUESTS:  upgrade of his under other than honorable condition 
discharge for the purpose of applying for Veteran’s disability.

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 he was unjustly accused and unable to face the accuser.  He 
was discharged from military service without proper defense and personal awareness of 
wrongdoing or alleged accusation. 

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 27 July 1976.

	b.  He served in Korea from 13 December 1976 to 9 December 1977.

	c.  He accepted the following nonjudicial punishments (NJP):

*	On 10 November 1976 – failure to obey a lawful regulation
*	On 3 October 1977 – making a false official statement

	d.  On 5 June 1978, he was convicted by a special court-martial (SPCM) for:

*	one specification of wrongfully soliciting other service members to buy 
marijuana on or about 20 March 1978
*	one specification of wrongfully possess marijuana on or about 20 March 
1978.
	e.  The court sentenced him to a bad conduct discharge (BCD), confinement at hard 
labor (CHL) for 2 months, forfeiture of $265 pay per month for 2 months, and reduction 
in grade to private/(E-1).

	f.  Special Court Martial (SCM) Order Number 88, dated 21 June 1978 approved the 
sentence and except for the BCD, ordered the sentence executed.  The record of trial 
was forwarded to the Judge Advocate General of the Army for appellate review by a 
Court of Military Review.

	g.  On 14 September 1978, the U.S. Army Judiciary affirmed the findings of guilty 
and the sentence.

	h.  On 15 November 1978, upon completion of appellant review SCM Order Number 
130, dated affirmed the sentence to a bad conduct discharge, confinement at hard labor 
for 30 days, forfeiture of $265.00 pay per month for two months and reduction to the 
grade of pvt/E-1, which was adjudged on 5 Jun 1978, promulgated in in Special Court –
Martial Order Number 88, dated 21 Jun 1978 and ordered it duly executed.  That portion 
of the sentence pertaining to CHL has been served.

	i.  On 10 April 1979, the applicant was discharged.  His DD Form 214 (Report of 
Separation from Active Duty) shows he was discharged in accordance with chapter 11 
of Army Regulation 635-200 (Personnel Separations) due to conviction by a court-
martial with an under other than honorable conditions characterization of service.  He 
was issued DD Form 794A (Under Other than Honorable Discharge Certificate).

*	he completed 2 years, 8 months, and 14 days of active service
*	he was awarded or authorized the Marksman Marksmanship Qualification 
Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification 
Badge with Grenade Bar

4.  By regulation:

	a.  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.

	b.  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 the short term of honorable service completed prior to a pattern 
of misconduct, with offenses of a criminal nature including the solicitation of distribution 
of illegal drugs to others, 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 (Personnel Separations – Enlisted Personnel), in effect at 
the time, provides for the separation of enlisted personnel.

	a.  Paragraph 1-13a states that an honorable discharge is a separation with honor.  
Issuance of an honorable discharge will be conditioned upon proper military behavior 
and proficient performance of duty during the member’s current enlistment of current 
period of service with due consideration for the member’s age, length of service, grade, 
and general aptitude.

	b.  Paragraph 1-13b 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 1-13c 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, unfitness, homosexuality, for security reasons, or for the 
good of the service.

	d.  Paragraph 11-2 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170004937

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