ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 

	BOARD DATE:  31 May 2019

	DOCKET NUMBER:  AR20170007632


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)

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 would like for his under other than honorable conditions discharge to be upgraded.  He was innocent of the charge brought against him during his court-martial and he is also requesting any and all court-martial transcripts to prove his claim(s) of innocence. 

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

	a.  He enlisted in the Regular Army on 31 August 1977.

	b.  He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, (UCMJ) on 14 June 1978 for behaving disrespectfully towards his superior commissioned officer.  

	c.  He accepted non-judicial punishment under Article 15, UCMJ, on 5 February 1979, for appearing for duty unshaven.  

	d.  He accepted non-judicial punishment under Article 15, UCMJ, on 12 July 1979,  for willfully disobeying his superior non-commissioned officer on 19 June 1979 and behaving in a disrespect way towards a non-commissioned officer on 25 June 1979.  His punishment was a reduction to private/E-2. 

	e.  His record is void of the appellate review; however, his record does have evidence of his special court-martial.

   f.  On 21 January 1980, he was convicted by Special Court-Martial Order 
Number 25 for one specification of behaving in a disrespectful manner towards his superior commissioned officer for which he was found guilty and one specification of receiving stolen property for which the findings were disapproved.  The court sentenced him to a bad conduct discharge.  
   
   g.  On 19 March 1980 the convening authority approved the sentence and ordered the sentence executed

	h.  Special Court-Martial Order Number 110, dated 9 December 1980, shows, in pertinent part, that his sentence was finally affirmed and the bad conduct discharged was ordered duly executed.

	i.  The applicant was discharged on 12 September 1985.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 and issued a bad conduct discharge characterization as a result of his special court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 11-2.  He completed 3 years, 4 months and 2 days of creditable active military service with lost time from 8 March 1979 to 8 March 1979 and 7 June 1979 until 7 June 1979.  His DD Form 214 also shows he was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar (M16).

4.  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.

5.  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 short term of service completed prior to a pattern of misconduct, some involving misconduct of a criminal nature, the Board concluded that he 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, in effect at the time, sets for the basic authority 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 certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated 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.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial punishments but not for serious infractions.

	c.  Paragraph 11-2, of that regulation covers Bad Conduct Discharges and states that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been 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)	 AR20170007632


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