ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 October 2019

	DOCKET NUMBER:  AR20170009881


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge to general under honorable 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)

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 he would like his discharge upgraded from a bad conduct discharge to a general under honorable conditions because the punishment was too severe in accordance with his past military record.  Until this incident, his prior record indicated he was a top notch soldier.  Please review his evaluation reports. (NCOER not available for the Board to Review).

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

	a.  He enlisted in the Regular Army on 29 March 1977.  He was discharged on 11 October 1979 for immediate reenlistment.  He reenlisted on 12 October 1979 and discharged once more on 12 October 1981.   

	b.  He reenlisted on 13 October 1981 and completed two tours in Europe.  His first tour was from 5 September 1977 to 17 December 1979.  His second tour was from 4 May 1982 to 9 May 1986. 

	c.  Special Court-Martial Order Number 31, dated 30 April 1987, confinement for one month, forfeiture of $400.00 pay per month for three months, and reduction to the lowest enlisted grade is approved, and except for the bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging forfeiture of pay in excess of $400.00 per month for two months is suspended for six months, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. 

	d.  On 15 September 1987, the United States Court of Military Appeals denied review of the case of, “Notice of Finality of United States v. SSG James L .Jackson, Jr.”

	e.  General Court-Martial Order 197, dated 1 October 1987, affirmed the sentence and ordered the bad conduct discharge be executed effective the date of the applicant’s discharge from the United States Army.  He was excluded from Fort Carson military reservation by reason of misconduct.  .

	f.  On 26 October 1987, the applicant was discharged accordingly.  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), as a result of court-martial, other, and issued a bad conduct discharge.  He completed 6 years, 3 months and 19 days of active service.  He had continuous honorable active service from 29 March 1977 until 11 October 1979 and 12 October 1979 to 12 October 1981.

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.  The Board should 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 applicant being placed in a position of trust and he violating that trust, the board concluded that the characterization of service received at the time of separation was appropriate.

However, the Board did note that the applicant had previous periods of honorable service which are not currently reflected on his DD Form 214 and recommended that change be completed to more accurately reflect his military service.




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 29 March 1977 until 11 October 1979 and 12 October 1975 September 1978 until 12 October 1981.”

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.



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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation 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.

	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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

	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.  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)	 AR20170009881


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