IN THE CASE OF:  

		BOARD DATE:  January 14, 2020

		DOCKET NUMBER:  AR20170009090


APPLICANT REQUESTS: upgrade of his bad conduct discharge (BCD) to a general 
under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Medical Discharge Record Dated 12 May 2017

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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 he would like to change his discharge status from BCD to 
general under honorable conditions to receive Veteran Affairs Medical Benefits.

3.  The applicant provides a copy of his medical discharge document from John Hopkins 
Hospital that shows on 10 May 2017 he was treated for diabetic ketoacidosis and 
discharged on 12 May 2017.  He also provides a self-authored letter, dated 
30 April 2019 that states that he was full of anxiety stemming from fear of possible 
deployment to a foreign country, he was also newly married.  His spouse was verbally 
and physically abusive and that he fell into a state of depression because of it.  He was 
forced to defend himself at the national training center in California and as a result his 
life had begun to decline.  He is seeking an upgrade of his discharge status immediately 
which would afford his access to medical benefits so that he can seek treatment for 
medical related illness related to his enlistment. 

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

	a.  He enlisted in the Regular Army on 23 May 1997.

	b.  On 1 February 1999, the applicant requested voluntary excess leave without pay 
and allowances.  It further states that he was convicted by Special Court-Martial on 
18 November 1998 and that action by the convening authority had not been taken, 
approving the sentence, which included a punitive discharge.  The execution of his 
punitive discharge will be withheld pending completion of further appellate review of his 
case.

	c.  Memorandum, dated 3 February 1999, shows the applicant’s duty status changed 
on 1 February 1999 due to his completed sentence to confinement.

	d.  Special Court-Martial Order Number (SCMO 5), dated 25 March 1999, shows 
that the applicant was charged under Article 91 with:

*	One specification of striking a Corporal known to him as a superior 
Noncommissioned Officer (NCO), in the head with his fist, striking him with an M16 
in the head, and biting him on the torso; Guilty
*	One specification of striking an NCO with in his chest with his hands; Guilty
*	One specification of disrespectful in language toward a Warrant Officer; Guilty
*	Sentence adjudged on 18 November 1998, to be reduced to the grade of 
private/E-1, forfeit $617 per month for 3 months, confinement for 3 months, and 
discharged with a BCD
*	Sentences was approved and, except for the part of the sentence extending to a 
BCD, will be executed.

	e.  A decision paper, dated 21 April 1999, shows the applicant’s immediate 
commander recommends approval of the applicant’s request for voluntary excess leave 
without pay and allowances. 

	f.  SCMO 72, dated 20 December 2001, states the applicant was sentenced to 
reduction to the grade of private/E-1, forfeit $617 per month for 3 months, confinement 
for 3 months, and discharged with a BCD.  Sentence adjudged on 18 November 1998 
and the part of the sentence extending to confinement has been served.

	g.  Orders 091-24, dated 1 April 2003, discharges the applicant from active duty 
effective 14 April 2003.

	h.  He was discharged from active duty on 14 April 2003 with a BCD.  His 
DD Form 214 shows that he discharged under the provisions of AR 635-200 (Active 
Duty Enlisted Administrative Separations), Chapter 3, Section IV (BCD).  Block 24 
(Character of Service) Bad Conduct and block 28 (Narrative Reason for Separation) 
Court-Martial, other.  It also shows that he completed 5 years, 8 months, and 7 days of 
active duty service with 77 days of lost time.

5.  AR 635-200 (Active Duty Enlisted Administrative Separations) paragraph 3 (Bad 
Conduct Discharge) states 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.  Questions 
concerning the finality of appellate review should be referred to the servicing staff judge 
advocate.

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 warranted.  Based upon the lengthy period of honorable service 
completed prior to any sign of any misconduct within the applicant’s record, as well as 
the demonstrated growth of the applicant through post-service character evidence, the 
Board voted to grant relief to the applicant.  As a result, the Board determined that 
granting clemency by upgrading the characterization of service to Under Honorable 
Conditions (General) was appropriate.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


?
BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 showing his characterization of service as Under Honorable Conditions 
(General).

		  
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, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 years after discovery of the alleged 
error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Army Regulation 635-200 (Personnel Separations-Enlisted Separations) in effect at 
the time, sets forth the basic authority 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. Chapter 3 of this regulation 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.  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.  


//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009090
	
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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