ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170012394


APPLICANT REQUESTS:  his bad conduct discharge by special court-martial be 
upgraded to honorable in order to have military benefits 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U. S. Code 1552)
*	Self-authored statement

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 made a few errors 20 years ago when he was 21 that 
involved his checking account and spending time where he should not have been, and 
has been hindered for the 20 years.  He served in Saudi Arabia when Khobar Towers 
was bombed in 1996.  He has stood in harm’s way for his country.  He votes.  He is 
over 41 years old now and is need of medical care and schooling.  He is a veteran who 
made an error and has paid his debt to society and would be a better citizen.  

3.  The applicant provided a self-authored statement that shows, there was another 
Soldier (X__x X__x) who was in his case but was not sentenced.  He allowed the 
Soldier to use his checking account without knowing the problem he was creating for 
himself.  His unit was very homophobic and prejudiced towards him.  He was young, 
sheltered and scared when others would taunt him.  The other Soldier was his only 
friend he thought he had.  He is not asking, to not be blamed, but asking the Board to 
consider giving him the benefit of being older, much more mature, responsible and 
honest.



4.  A review of the applicant’s service records shows: 

	a. He enlisted in the Regular Army on 28 April 1995.  

	b.  On 30 December 1997, he was convicted by a general court martial of 1 count of, 
without authority, absent himself from his unit, and 3 counts of intent to defraud and for 
procurement of lawful currency, wrongfully and unlawfully make certain checks.  The 
court sentenced him to reduction to the grade of E-1, forfeiture of all pay and 
allowances, confinement for 10 months, pay the United States a $5,000.00 fine, 
serve 4 additional months of confinement if the fine is not paid, and to be discharged 
from the Army with a bad-conduct discharge.

	c.  The convening authority approved the sentence except for the confinement to a 
period of 6 months, and ordered the sentence executed.  The record of trial was 
forwarded to The Judge Advocate General of the Army for appellate review.

	d.  Orders 089-28, issued by Detachment C, 38th Personnel Service Battalion, CMR 
463, APO, AE 09177 on 24 March 1998, show he was reassigned to the Personnel 
Processing Facility at Fort Sill, Oklahoma, on involuntary excess leave pending final 
appellate review of the General Court-Martial.

e.  On 15 June 1998 the appellate (United States Army Court of Criminal Appeals)
affirmed the findings of guilty and the sentence was approved by the convening 
authority correct in law and fact.

	f.  General Court-Martial Order 147, dated 6 November 1998, affirmed the sentence 
and ordered the bad conduct discharge be executed.

	g.  The applicant was discharged on 30 November 1998.  His DD Form 214 shows 
he was discharged in the rank/grade of private/E-1 as a result of his general court-
martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel 
Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge.  He 
completed 3 years, 1 months, and 8 days of creditable active military service with lost 
time from 10 December 1996 to 18 September 1997.  His DD Form 214 also shows he 
was awarded or authorized the: 

*	Army Service Ribbon
*	Overseas Service Ribbon
*	Marksman Marksmanship Qualification Badge Grenade Bar
*	Marksman Marksmanship Qualification Badge with Rifle Bar 

5.  By regulation (AR 635-200), 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.  The applicant's record is void of evidence that shows he/she applied for a discharge 
upgrade with the Army Discharge Review Board within 15 years of the separation.

7.  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 amount involved in the 
bad check writing, 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 635-200 provides for the separation of enlisted personnel: 

	a. Paragraph 3-7a provides that an honorable discharge is a separation with honor 
and entitles the recipient to benefits provided by law.  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 provides that a general discharge 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 3-7c 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, security reasons, or for the good of 
service in selected circumstances.

	d. Paragraph 3-11 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 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 
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)	 AR20170012394

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