ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 June 2019

	DOCKET NUMBER:  AR20170011833


APPLICANT REQUESTS: an upgrade to his bad conduct discharge characterization

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge or Dismissal 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 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 although he was guilty, he would like the Board to consider his request for an upgrade so that he can receive medical benefits.

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

	a.  He enlisted in the Regular Army on 4 June 1985.

	b.  He served overseas in Korea from 30 October 1985 to 23 September 1986.

	c. On 23 March 1988, he accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for disrespectful behavior towards an officer and non-commissioned officer while being counseled.  His punishment was to be reduced to private/E-2.

	d.  Special Court-Martial Order Number 43, dated 10 June 1988, shows he was found guilty of one specification of receiving stolen property and one specification of failing to repair.  The court sentenced him to forfeit $447.00 pay for three months, to be confined for three months and to be discharged from the service with a bad conduct discharge.  

	e.  On 10 June 1988, his duty status changed from present for duty to military confinement and then back to present for duty on 19 August 1988.

	f.  On 20 July 1988, the convening authority approved the sentence and except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	g.  The applicant’s record void of the appellate review, however, according to special court-martial order number 14, dated 15 May 1989, the sentence received was affirmed and the bad conduct discharge was ordered to be executed.   On 22 August the applicant was placed on involuntary excess leave pending the completion of the appellate review.

	h.  The applicant was discharged from active duty on 11 December 1990.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 3-11, section IV, by reason of court-martial.  This form further lists his character of service as "bad conduct."  He completed 5 years, 3 months and 27 days of active service, with lost time from 10 June 1988 to 18 August 1988.  He was awarded or authorized the:

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

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  After considering the evidence, the ADRB denied his request.
5.  By regulation, AR 635-200, chapter 3-11 (bad conduct discharge) 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.  

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 criminal nature of the offense which led to the applicant’s separation, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, 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.
	 
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, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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 states that a general discharge (GD) 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.  
   c.  Paragraph 3-11 (BCD) states a Soldier will be given a BCD 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.




ABCMR Record of Proceedings (cont)	 AR20170011833


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