ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170011601


APPLICANT REQUESTS:  

*	An upgrade of his bad conduct discharge
*	a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  he 
submitted 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 (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 believes the discharge he received was unjust for the 
violation he was charge with, which was missing movement, due to the disability he was 
experiencing.  It has taken many years to express how he feels about what was an 
unjust punishment and put it behind him.  He focuses on moving forward with his life 
and providing for his family. 

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

	a.  He enlisted in the Regular Army (RA) on 25 August 1987.  He reenlisted in the 
RA on 26 July 1990.  

	b.  On 18 March 1991, he was convicted by a general court martial of one 
specification of missing movement.  The court sentenced him to confinement for 
7 months, forfeiture of $300.00 pay per month for 7 months, reduction to pay grade E-1, 
and a bad conduct discharge.

	c.  On 2 May 1991, 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.
	d.  On 5 September 1991, the U.S. Army Court of Military Review, affirmed the 
findings and sentence.

	e.  His record is void of evidence he petitioned the U.S. Army Court of Criminal 
Appeals.

	f.  General Court-Martial Order Number 9, dated 27 March 1992, affirmed the 
sentence and ordered the bad conduct discharge duly executed.

	g.  Accordingly, he was discharged on 30 April 1992, under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a 
result of a court-martial.  His DD Form 214 (Certificate of Release or Discharge from 
Active Duty) shows he completed 4 years, 8 months, and 6 days of active service.  The 
forms does not list any awards.

4.  By regulation (AR 635-200), 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. 

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.

6.  By regulation (AR 15-185), applicant do not have a right to a hearing before the 
ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice 
requires. 

BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal 
consideration when reviewing discharge upgrade requests, the Board determined there 
is insufficient evidence to grant relief.  Based upon the short term of service and the 
misconduct involving missing movement, as well as a lack of character evidence 
submitted by the applicant to show he has learned and grown from the events leading to 
his discharge, the Board found insufficient evidence of an error or injustice which would 
warrant making a change to the applicant’s characterization of service.



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, 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. 

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) 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.

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal 
hearing whenever justice requires.



ABCMR Record of Proceedings (cont)	 AR20170011601

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