ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 November 2019 DOCKET NUMBER: AR20170005326 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 Application for the Review of Discharge from the Armed Forces of the United States) * character 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 (ABCMR) 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 would greatly appreciate an upgrade of his discharge because he has kept his record clean for a lengthy time. He was an alcoholic, but he has been in treatment for several years. He was only 19 years of age when the incident occurred. At the time, he turned himself in and was not apprehended by the military police. He was shipped off to Germany where he was very unhappy and turned into an alcoholic. He met with the chaplain several times about wanting out. In the past 24 years, he has not received any felonies. An upgrade would assist him in obtaining a better job. b. He considers himself an asset to the community. He attends Central Baptist Church where he regularly volunteers. He also see a therapist and attends Celebrate Recovery for continued sobriety. If his record was expunged or upgraded, it would enable to him to complete an application with a decent discharge. He believes he deserved a second change after all these years. c. Even though he got into trouble in the Army, it was an eye opening experience and made him a better person. He thinks every male at 18 years of age should experience basic training and the world would be a better place. 3. The applicant provided an undated character letter wherein his pastor attested the applicant had shown himself to be genuine in his character and consistent in his personality. 4. Review of the applicant’s service records show: a. He enlisted in the Regular Army on 24 January 1989 and he held military occupational specialty 13B (Cannon Crewmember). He was promoted to pay grade E-2 on 24 July 1989. b. On 8 November 1989, he was convicted by a general court-martial of two specifications of larceny of another Soldier’s property, two specifications of being disrespectful in language toward a noncommissioned officer, one specification each of stealing the passenger car of another Soldier, wrongfully having a blood alcohol leaver over .50, and stealing the car keys of another Soldier. c. The court found him guilty and sentenced him to confinement for 18 months, forfeiture of $500.00 pay per month for 18 months, and a bad conduct discharge. d. On 8 February 1990, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. e. On 30 March 1990, the U.S. Army Military Court of Review affirmed the findings of guilty and the sentence. His record is void of any indication he petitioned the U.S. Court of Military Appeals for a review of case. f. General Court-Martial Order Number 385, issued by the U.S. Army Correctional Brigade, Fort Riley, KS on 29 June 1990, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. g. He was discharged on 2 July 1990. His DD Form 214 (Certificate of Released or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, with a bad conduct discharge. He completed 9 months and 13 days of creditable active military service, with lost time from 8 November 1989 to 1 July 1990. This form also shows he was awarded/authorized the: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * 2nd Class Marksmanship Qualification Badge with Hand Grenade Bar 5. 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. 6. 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 found relief was not warranted. Based upon the short term of honorable service completed prior to the serious criminal misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge 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 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) AR20170005326 4 1