ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20170010523


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  he submits a 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 believes that he was unfairly punished due to the nature of the offenses.  He believes that he was retrainable and should have been afforded the opportunity.  He was never informed that he could request an upgrade of his discharge.  He is currently in dire need of medical treatment.

3.  Review of the applicant’s military record shows:

	a.  He enlisted in the Regular Army on 13 July 1982.  He served in Korea from 29 December 1982 to 22 December 1983.  He was promoted to pay grade E-4 on 1 December 1983.

	b.  He was reported absent without leave (AWOL) on 30 June 1984.  He was apprehended by military police and returned to duty on 9 July 1984.

	c.  On 20 July 1984, court-martial charges were preferred against the applicant for one specification each of:

* being AWOL on two occasions from 23 May to 26 Jun 1984 and from 30 June to 9 July 1984
* violating a lawful general regulation by assisting in purchasing items for personnel not entitled to duty-free privileges and purchasing goods for illegal transfer or production of income
* falsely making and altering a certain money order with intent to defraud

	d.  On 30 July 1984, after consulting with legal counsel, he voluntarily requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate
* he could be deprived of many or all Army benefits
* he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he could expect to encounter substantial prejudice in civilian life
* he waived his rights and elected to submit a statement in his own behalf

	e.  In his statement, dated 30 July 1984, the applicant stated that he was experiencing extreme financial problems and he did not know what to do to save his money.  He wanted to be discharged from the Army to get his life together by opening a barber shop.  His knowing how to save and spend his money wisely, would have prevented him from committing the offense(s).  He planned to attend a finance school for budget training.  He joined the Army to improve himself on the advice of his father.

	f.  On 30 July 1984, the applicant’s immediate commander recommended disapproval of the applicant’s chapter 10 request.  The commander stated that the applicant had serious charges pending against him.  His attempt at forgery along with the black market charges against him in Korea did not warrant a discharge to avoid prosecution.  Furthermore, the applicant had gone AWOL twice in an attempt to avoid prosecution.  He strongly recommended disapproval of the applicant’s request for a chapter 10 discharge.

	g.  On 30 July 1984, the applicant’s chain of command recommended disapproval of his request for a chapter 10 discharge.  His chain of command stated the offenses warranted a court-martial.  

	h.  On 31 August 1984, he was convicted by a general court martial of two specifications of being AWOL and one specification each of violating a general regulation and forgery.  The court sentenced him to confinement for 9 months, a forfeiture of all pay and allowances, a reduction to pay grade E-1, and a bad conduct discharge.

	i.  On 18 October 1984, the convening authority approved the sentence, and except for the part of the sentence extending to a bad conduct discharge, and ordered the sentence executed.
	j.  On 18 October 1984, the staff judge advocate (SJA) recommended the Commanding General (CG) disapprove the applicant’s request for a chapter 10 discharge.  The SJA stated the applicant was convicted of two specifications of AWOL, one specification of violation of a general regulation, and one specification of forgery.  He was sentenced to a reduction to the grade of E-1, a forfeiture of all pay and allowances, confinement at hard labor for 9 months, and a bad conduct discharge on 31 August 1994.  His chain of command recommended disapproval.

	k.  On 18 October 1984, the Acting CG disapproved the applicant’s chapter 10 discharge request.

	l.  General Court-Martial Order Number 359, dated 15 July 1985, shows the appellate review was completed.  The sentence was affirmed and the bad conduct discharge ordered duly executed.

	m.  Accordingly, he was discharged on 24 July 1985, under the provisions of AR 635-200, chapter 3, as a result of a court-martial.  His service was characterized as bad conduct.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 3 months, and 18 days of active service and time lost from 23 May to 26 June 1984, 30 June to 8 July 1984, and 10 July 1984 to 14 February 1985.  The form also shows he was awarded and authorized the:

* Army Service Ribbon
* Overseas Service Ribbon
* Army Achievement Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation (AR 635-200):

	a.  Chapter 3 – 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. 

	b.  Chapter 10 – an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial.  

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 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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed the policies and procedures pertaining to separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a – an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

	c.  Paragraph 3-11 – a member would 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. 

	d.  Chapter 10 – an individual who had committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service.  A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment.

3.  Title 10, U.S. Code, section 1552(f), provides that with respect to courts-martial ABCMR action may extend only to the correction of actions taken by reviewing authorities or action on the sentence of a court-martial for purposes of clemency.

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 (BCMRs/NRs) regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs/NRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs/NRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170010523


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