ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20170012433 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to a general, under honorable conditions 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 believes the punitive discharge was inequitable because he does not think that his previous good conduct and decorations that he earned through his years of service were given fair weight in mitigating the intensity of the sentence. The discharge has served its purpose in severely restricting employment opportunities and other benefits he and his family would have otherwise enjoyed over the past 18 years. 3. A review of the applicant’s service record shows: a. Having prior service in the Regular Army (RA), he enlisted in the RA on 15 March 1978. b. He served in Germany from 19 October 1974 to 13 October 1976, from 18 January 1980 to 11 March 1982, and from 21 February 1984 to 6 February 1984 c. He accepted nonjudicial punishment on/for: * 3 March 1988 for failing to go to his appointed place of duty * 6 May 1988 for failing to pay his debt and violating restriction * 20 May 1988 for absent without leave d. Supplementary action on his nonjudicial punishment was taken on/for: * 12 May 1988 to vacate his suspension of punishment for failing to go to his appointed place of duty * 30 August 1988 to remit his punishment as the Commander exceeded the limits of punishment he could impose e. On 2 September 1988, he was convicted by general court-martial of: * one specification of wrongful appropriate of a vehicle * one specification of willful dereliction of duty * one specification of failing to go to his appointed place of duty f. The court sentenced him to a bad conduct discharge, reduction to private (PVT)/E-1, and confinement for 21 months. g. General Court-Martial Order Number 38, dated 18 October 1988, approved the sentence and forwarded the record to the Judge Advocated General of the Army for review by a Court of Military Review. h. On 29 March 1989, the appellate rendered a decision that states that on consideration of the entire record, including consideration of the issue personally specified by the appellant, they hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are affirmed. i. General Court-Martial Order Number 672, dated 14 August 1989, affirmed the sentence of bad conduct discharge, confinement for 21 months, and reduction to PVT/E-1. The provisions of Article 71(c) having been complied with, the sentence would be duly executed. j. He was discharged on 29 September 1989 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3, section IV with a bad conduct discharge characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years and 4 months of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Army Good Conduct Medal (2nd Award) * Army Achievement Medal * Overseas Service Ribbon (3) * Army Service Ribbon * Noncommissioned Officer Professional Development Ribbon * Air Assault Badge * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 4. By regulation, 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. 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 partial relief was warranted. Based upon the misconduct resulting in the discharge involving some with criminal behaviors, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board noted that the applicant had prior honorable periods of service which were not currently depicted on his DD Form 214 and recommended that change be made to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 15 March 1978 until 3 January 1982.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 Soldiers), in effect at the time, sets 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 the 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) states 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 (DD Form 259A (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. 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 form 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 the 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) AR20170012433 4 1