ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 May 2019

	DOCKET NUMBER:  AR20170007349


APPLICANT REQUESTS: reconsideration of his earlier request for upgrade of his bad conduct discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-Authored Statement from Applicant

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150005612 on 12 January 2016. 

2.  The applicant previously stated his sentence did not match the crime.  The evidence was circumstantial.  The jury did not want to give him a bad conduct discharge they wanted to give him an honorable discharge.

3.  The applicant provides a detailed self-authored statement, describing the incident and his military and personal experiences.

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 7 July 1984.  He held military occupational specialty 31K (Combat Signaler).

	b.  He reenlisted in the Regular Army on 24 April 1987, 8 February 1990 and his third reenlistment was on 24 June 1991.  

	c.  He served overseas during the following times and locations:

* Korea from 10 December 1984 to 6 December 1985
* Germany from 26 June 1988 to 19 June 1990
* Saudi Arabia from 28 September 1990 to 13 April 1991

   d.  General Court-Martial (GCM) Order Number 83, dated 3 September 1993, shows he was found guilty of seven specifications:

* Presenting false official documents on 16 July 1992 and 30 July 1992
* Soliciting another to commit housebreaking between 1 August 1992 and 31 August 1992;
* Soliciting another to commit graft on 23 September 1992 
* Attempted unpremeditated murder on 1 December 1992
* Breaking and entering with intent to commit unpremeditated murder on 1 December 1992
* Wrongfully endeavoring to influence the testimony of a witness, between 1 November 1992 and 30 November 1992

	e.  His sentence was reduction to private (PV1)/E-1, confinement for 1 year, and a bad conduct discharge.  The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, was executed.

	f.  On 18 October 1994, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

	g.  General Court-Martial Order Number 91, dated 2 August 1995, shows, in pertinent part, that his sentence was finally affirmed and the bad conduct discharged was ordered duly executed.

	h.  The applicant was discharged from active duty on 10 October 1995.  His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial.  This form further lists his character of service as "bad conduct."  

		(1)  He completed 10 years, 4 months and 6 days of active service with lost time from 1 December 1992 to 2 December 1992, 3 December 1992 to 13 September 1993, 14 September 1993 to 20 October 1993 and 21 October 1993 to 10 October 1995.  

		(2)  He was awarded or authorized the following:

* Army Commendation Medal
* Army Achievement Medal (2nd Award)
* National Defense Service Medal
* Southwest Asia Service Medal with 2 bronze service stars
* Overseas Service Ribbon (2nd Award)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar
* Air Assault Badge
* Driver and Mechanic Badge with Operator-S Bar

5.  By regulation, AR 635-200, chapter 3-11 (bad conduct discharge) states that 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.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 relief was not warranted.  Based upon the pattern of misconduct, some of which was extremely serious in nature, the Board concluded the characterization of service received at the time of discharge was appropriate.

However, the Board did note the prior honorable service completed prior to the misconduct and recommended that be noted on the applicant’s DD Form 214 to ore accurately depict the military service of the applicant.


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:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 11 July 1984 to 23 June 1991.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.

	 
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.


ADMINISTRATIVE NOTE(S):

A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block.  As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 11 July 1984 to 23 June 1991.”


REFERENCES:

1.  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 HD 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 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.  
2.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

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.  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)	 AR20170007349


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