ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170011596


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
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 would like his bad conduct discharge upgraded.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 6 September 1983.

	b.  On 5 February 1985, he was charged with one specification of larceny.

	c.  On 6 May 1985, the applicant received an approved Bar to Reenlistment Certificate for a driving under the influence apprehension and conviction.

	d.  On 13 June 1985, he was convicted by a general court-martial for one specification of larceny of an M16A1 rifle.  The court sentenced him to a bad conduct discharge, confinement for 1 year and 5 months, total forfeiture of all pay and allowances, and reduction in grade to E-1.

	e.  General Court-Martial Order Number 33, dated 30 August 1985 approved the sentence and except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to the Judge Advocate of the Army for appellate review.

	f.  On 22 January 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence approved by the convening authority correct in law and fact.

	g.  General Court-Martial Order Number 178, dated 16 May 1986 affirmed the sentence to a bad conduct discharge.  The provisions of Article 71(c) had been complied with, and the bad conduct discharge would be duly executed.  The accused was on adjudged parole from the U.S. Disciplinary Barracks, Fort Leavenworth, KS at the time of this action.

	i.  On 13 June 1986, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) due to conviction by a court-martial with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate.

* he completed 1 year, 9 months, and 7 days of active service with 366 days lost time
* he was awarded or authorized the Army Service Ribbon, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the First Class Marksmanship Qualification Badge with Grenade Bar

4.  By regulation/directive:

	a.  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.  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 serious and criminal nature of the misconduct which led to the applicant’s discharge, the Board concluded that the characterization of service received at the time of separation 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.
	 
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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states that 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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under other than Honorable) 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 3-10 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.  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 UCMJ, 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 UCMJ or action on the sentence of a court-martial for purposes of 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 (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.


ABCMR Record of Proceedings (cont)	 AR20170011596


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