ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170010866 APPLICANT REQUESTS: an upgrade of his dishonorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Resume * Identification Cards * Certificate of Achievement * College Transcripts * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter of Support * Six Certificates of Achievement from the State of Florida 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 there is no error or injustice, he was young and stupid when he was 20 years old. He made a bad judgment of which it cost him his military career and many years in confinement. He is 46 years old now and he loves his country. He wants to upgrade his discharge because he did service with honor and pride. He is a Christian, upstanding, hard-working man and is a certified pastor. He does volunteer work and motorcycle ministry. He needs an upgrade to general if possible. He would like an honorable since he is a new man and does well in his community. 3. The applicant provides: * his resume, which indicates he is a welder and has served as a senior debt specialist and industrial fabricator * his driver’s license and social security card which show he is the applicant * * a Certificate of Achievement, dated 23 July 1991 from the 7th Medical Command for outstanding performance of duty in Germany * his college transcripts, dated 21 March 1991, which show he received an A- grade point average * a letter of support from his employer, dated 22 January 2014, which indicates he is a dependable, hard-working, and a team player * six Certificates of Achievement from the State of Florida, Department of Education for various competencies 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 10 August 1989. b. He served in Germany from 18 February 1990 to 6 July 1992. c. He received nonjudicial punishment on 12 February 1992 for being drunk and disorderly. His punishment included reduction to private first class/E-3. d. He was convicted by general court-martial on 11 September 1992 for one specification of disobeying a lawful order and two specifications of robbery with a firearm. The court sentenced him to a dishonorable discharge, confinement for 9 years, forfeiture of all pay and allowances, and reduction to private (PVT)/E-1. e. On 22 October 1992, the convening authority approved only so much of the sentence as provides for a dishonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to PVT/E-1 and except for the dishonorable discharge ordered the sentence executed. f. On 1 February 1993, the U.S. Army Court of Military Review rendered an opinion and on consideration of the entire record, including consideration of the sentence severity issue personally specified by the applicant, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. The findings of guilty and the sentence were affirmed. g. General Court-Martial Order Number 261, dated 24 June 1993 ordered the sentence to a dishonorable discharge executed after Article 71(c) had been complied with. h. The applicant was discharged from active duty on 20 August 1993 with a dishonorable discharge. His DD Form 214 shows he completed 2 years, 10 months, and 27 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Army Achievement Medal * * Army Service Ribbon 5. By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general 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 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 seriousness and criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that the 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. 6/17/2019 X CHAIRPERSON Signed by: 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 Separations), in effect at the time, set 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) 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 Conditions) 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, homosexuality, security reasons, or for the good of the service. d. Paragraph 3-11 (Bad Conduct Discharge Certificate) 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. e. Paragraph 3-10 (Dishonorable Discharge) states a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court- martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of 1. clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 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.