ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 September 2019

	DOCKET NUMBER:  AR20170013117


APPLICANT REQUESTS:  an upgrade to her bad conduct discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge 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 almost 30 years ago, she made the worst mistake of her life by messing up her military career.  As of today, she is ashamed of what she did by writing checks from an account that was not hers.  She was young and stupid.  She is 55 years old now and has been a law abiding citizen, since her discharge.  She is asking for forgiveness and a chance.  If she knew where the person that she offended was, she would still be asking for her forgiveness.  She is so sorry for letting her country down.

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

	a.  She enlisted in the Regular Army on 19 January 1984 and reenlisted on              1 October 1986 for a period of 4 years in the pay grade of Specialist/E-4.

	b.  She served overseas in Korea from 21 October 1985 until 16 October 1986.

	c.  On 16 June 1987, she was convicted by Special Court-Martial Order Number 35 for one specification of disrespectful behavior towards her superior non-commissioned officer on 7 April 1987, and one specification of wrongfully utter a check with a forged signature on 6 February 1987.  The court sentenced her to a reduction to Private (E-1) and issuance of a bad conduct discharge.  
   
   d.  On 11 August 1987, the convening authority approved the sentence and except for the bad conduct discharge, order the sentence executed.

	e.  On 11 December 1987, the appellate (United States Army Court of Military Review) affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

	f.  Special Court-Martial Order Number 8, dated 17 May 1988, shows, in pertinent part, that her sentence was finally affirmed and the bad conduct discharged was ordered duly executed.

	g.  The applicant was discharged on 21 May 1988.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged in the rank/grade of Private/E-1, as a result of her special court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, with a bad conduct discharge.  She completed 4 years, 4 months and 3 days of creditable active military service with no lost time.  Her DD Form 214 also shows she was awarded or authorized the: 

* Marksman Marksmanship Qualification Badge with Rifle Bar (M16)
* Army Service Ribbon
* Overseas Service Ribbon
* Army Good Conduct Medal

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

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 Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  The applicant accepts responsibility for her actions and was remorseful with her application, demonstrating she understands her actions were not that of all Soldiers.  The Board agreed an Under Honorable Conditions (General) character of service is warranted.

The Board also noted that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict her military service.
BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her a DD Form 214 for the period ending 21 May 1988 showing her character of service as Under Honorable Conditions (General), and adding to block 18 (Remarks) “Continuous honorable active service from 19 January 1984 until 30 September 1986.”
	 
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 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
	a. Paragraph 3-7a (Honorable) provides 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 (General) 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	c.  Paragraph 3-11, of that regulation covers Bad Conduct Discharges and 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.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013117


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