ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170013699


APPLICANT REQUESTS:  an upgrade of bad conduct discharge to under honorable condition (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* 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 this request is being made in order to receive his Veteran Administration (VA) benefits and to sign up at the VA hospital.  He would appreciate if the Board considers upgrading his discharge to under honorable condition (general).  He believes SFC X should have not been a part of the jury on 10 January 1983, because he worked with him in the field on several occasions.  He felt this would have changed the outcome of his court-martial.

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

	a.  He enlisted into the Regular Army on 30 July 1981.

	b.  On 30 December 1982, he was convicted by a general court-martial of one specification of aggravated assault and two specifications of communicating a threat. The court sentenced him to be confined at hard labor for twelve months, forfeiture of all pay and allowances; reduction to private/E-1; and a bad conduct discharge. 

	c.  On 1 April 1983, the convening authority approved the sentence, and except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for Review by the U.S. Army Court of Military Review.

	d.  On 9 February 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

	e.  On 23 March 1984, the applicant was notified and advised of his right to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law within 60 days.  Record is void of any appeal.

	f.  General Court-Martial Order Number 218, issued by Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, shows the sentence had been afformed and would be executed. 

	g.  On 28 August 1984, the applicant was discharged in the rank/grade of private/   E-1.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial with a bad conduct characterization of service.  It also show he completed 2 years, 4 months, and 27 days of active service.  He was awarded or authorized:

* Good Conduct Medal
* Army Service Ribbon
* Noncommission Officer Professional Development Ribbon 
* Expert Marksmanship Badge with Hand Grenade Bar
* Expert Marksmanship Badge with M16 Rifle Bar
4.  By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general court martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

5.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 review of the application and all evidence, the Board determined relief is not 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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the misconduct involving violent behavior towards others, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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 (Personnel Separations – Enlisted Personnel), 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 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) sates 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 3-10 (Bad Conduct discharge) states 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.  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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013699


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