ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 June 2019

	DOCKET NUMBER:  AR20170008897


APPLICANT REQUESTS:  an upgrade to his bad conduct discharge 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Veterans affairs, national capital region benefits officer statement of his service

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 the bad conduct discharge has hurt his life and he cannot get a good job or benefits.  

3.  The applicant provides a statement of his service from the veteran’s affairs national capital region benefits office.  

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

	a.  Having had prior service in the in the Army Reserves, he enlisted in the Regular Army on 12 January 1988.  

	b.  On 25 January 1989 he was convicted by special court martial of one specification of violating a lawful general regulation, one specification of unlawfully making a false statement under oath, one specification of stealing and one specification of wrongfully communicating a threat.  The additional charges listed were three specifications of stealing, one specification of assault, one specification of communicating a threat, and two specifications of false swearing.  

	c.  The court sentenced him to a bad-conduct discharge, reduction to E-1, forfeiture of all pay and allowances, and confinement for a period of 25 months.  

	d.  The DA Form 4187 (Personnel Action), dated 4 October 1989 changed his duty status from present for duty (PDY) to confined military authorities on 25 January 1989.  

	e.  The appellate review on 20 November 1989, shows the finding of guilty of specification 2 (stealing) of additional charge III was set aside and that specification was dismissed.  The remaining findings of guilty were affirmed.  Reassessing the sentence based on the error noted and the entire record, the court affirms only so much of the sentence as provided for a bad-conduct discharge, confinement for 21 months, forfeiture of all pay and allowances, and reduction to E-1.  

	f.  He underwent a medical examination on 26 January 1990, the examiner stated he was qualified for separation.  

	g.  He underwent a mental evaluation on 26 January 1990 and the examiner stated that he had the mental capacity to understand and participate in the proceedings.  

	h.  SPCMO Number 179, dated 2 April 1990, rights, privileges and property of which the accused has been deprived by virtue of the finding of guilty and that portion of the sentence set aside was restored.  The provisions had been complied with, and the bad conduct discharge duly executed.  

	i.  He was discharged on 13 April 1990.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, paragraph 3-11, bad conduct discharge, JJD (court martial, other).  His characterization is bad conduct.  He completed 1 year, and 14 days of active service, he had prior service of 4 months and 22 days.  He had lost time from 25 January 1989 to 12 April 1990.  

5.  By regulation 635-200, paragraph 3-11, 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  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 record, 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.


ADMINISTRATIVE NOTE(S):

Not Applicable


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.  AR 635-200 in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor.  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 (General discharge) states 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 3-7c (Under Other than Honorable Condition) 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 service in the following circumstances:  

* when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army
* when the reason for separation is based upon one or-more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army.  Examples of factors that may be considered include the following:  use of force or violence to produce serious bodily injury or death, abuse of a position of trust, or disregard by a superior of customary superior-subordinate relationships
* acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army  
* deliberate acts or omissions that seriously endanger the health and safety of other persons
* an other than honorable conditions discharge will be directed only by one of the following:  a commander exercising general court-martial jurisdiction, or a general officer in command who has a judge advocate or legal advisor available to his or her command

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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170008897


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