ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20170012436 APPLICANT REQUESTS: correct his DD Form 214 (Certificate of Release or Discharge from Active Duty). Item 12b (Separation Date this Period) from 7 July 1997 to 3 August 1990 and upgrade item 24 (Character of Service) from bad conduct discharge to general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 an upgrade of his bad conduct discharge to general so that he may apply for non-disability medical care through the VA (Veterans Administration). He states he was told by a JAG (Judge Advocate General) lieutenant that his bad conduct discharge should be upgraded to general after 1 year following separation from active duty due to the “minor” level of offense that brought about his court martial. He received a copy of his DD Form 214 and his discharge had not been upgraded. Additionally, there are two errors on the form, his separation date and his effective date of pay grade. His date of effective pay grade is around the time of his discharge from service. A copy of his DD 214 was sent with his application packet. He would like a DD Form 215 (Correction of DD Form 214) be issued upgrading his status to general and correcting the errors. He is unemployed recovering from a stroke with no medical insurance and will soon run out of vital medications. He has been forced to move in with his elderly and retired parents (who are on a fixed retirement income), otherwise, he would be homeless and living on the streets. ABCMR Record of Proceedings (cont) 3. The applicant provides his DD Form 214 with arrows to item 12b (Separation Date This Period) 7 May 1992 and item 24 (Character of Service) bad conduct indicating dates are reversed. 4. A review of the applicant’s records show: a. DD Form 4/1 (Enlistment/Reenlistment Document) shows he enlisted on 7 April 1987. b. Permanent Orders 185-6 dated 23 December 1988, awarded him the Army Achievement Medal. c. DA Form 2-2 (Insert Sheet to DA Form 2-1) item 2 (Synopsis of Specification and Date of Offense) shows general court martial number 14. d. General court martial order number 14 dated 3 August 1990 shows he was convicted for and sentenced to: • larceny of one block of M112 demolition charge (C-4) sometime between November 1989 and January 1990 • larceny of igniting fuses sometime between August 1989 and October 1989 • his sentence consisted of in part, reduction to E-1 and bad conduct discharge, adjudged 4 June 1990 e. DA Form 4187 (Personnel Action) 21 February 1990, he was reduced to private/E2. f. DA Form 4126-R (Bar to Reenlistment Certificate) 19 July 1990. He was barred for larceny of explosives, possession of firearms and dangerous weapons in Federal Facilities. It further states he was convicted on 4 June 1990 and awaiting approval, sentenced to 75 days hard labor, and a bad conduct discharge. g. DA Form 4187 (Personnel Action) dated 6 August 1990, reduction to private (E1). h. General Court Martial Order dated shows he was: • sentenced to a bad conduct discharge, his punishment consisted in part, reduction to private E-1, • adjudged on 4 June 1990 as promulgated in General Court Martial Order Number dated 3 , was finally affirmed, complied with the bad conduct discharge will be executed. i. The applicant was discharged on 7 July 1992. His DD Form 214 (Certificate of Release from Active Duty) shows he was discharged in accordance with Army ABCMR Record of Proceedings (cont) Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 3, in the rank/ grade of private/E-1, with a bad conduct discharge. His DD 214 shows he completed 5 years, 3 months and 1 day of service with no lost time. He was awarded the Army Achievement Medal, Army Service Ribbon, the National Defense Service Medal, Expert Marksmanship Badge Rifle and Marksman Marksmanship Badge Grenade. 5. By regulation (AR 635-5), the version of the regulation in effect at the time stated for item 24: (Characterization of Service) characterization or description of service is determined by directives authorizing separation 6. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty. • item 12b (Separation Date this Period), List the Soldier’s transition date. This date may not be the contractual date if the Soldier was separated early, voluntarily extends, is extended to make up lost time. Or is retained on active duty for the convenience of the Government. • item 24 (Characterization of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized. 7. 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 8. 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. ABCMR Record of Proceedings (cont) BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Board members believed that the applicant either intended to sell the military equipment or do something with it. Either way, they concluded that his trial by a court-martial was equitable given the circumstances. Board members noted that the applicant was put on excess leave in 1990 pending appellate review of his case, which occurred in 1992. That is why he was discharged in 1992. Based upon the serious and criminal nature of the misconduct which led to the applicant's separation, the Board found insufficient evidence of an error or injustice which would warrant changing the separation date or characterization of service of the applicant. 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. ABCMR Record of Proceedings (cont) 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) sets forth the basic authority 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. chapter 3. 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. 3. Army Regulation (AR) 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. It explains separation document preparation, distribution, correction, and transition processing. It states: a. Item 12h (Separation Date this Period), list the Soldier’s transition date. This date may not be the contractual date if the Soldier was separated early, voluntarily extends, is extended to make up lost time, or is retained on active duty for the convenience of the Government. b. Item 12i (Effective Date of Pay Grade) from the most recent promotion document (or reduction instrument), enter the effective date of promotion or reduction to the current pay grade. Do not confuse with date of rank. Soldiers who have served in ranks corporal, first sergeant, or command sergeant major often have a date of rank different from the effective date of pay grade. c. item 24 (Characterization of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of ABCMR Record of Proceedings (cont) the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized. 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 courtmartial; 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. AR20170012436 AR20170012436 1 4 1