ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170013706


APPLICANT REQUESTS:  an upgrade to his bad conduct discharge to a general 
discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	United States Army Court of Military Review Appellate (U.S.)
*	Special Court Martial Order (SPCMO) Number 24

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 although his discharge was verified, it was never approved and 
several of his rights were violated.  He did not receive due process and he did not 
received any pay dating back from 1 March 1989 through 1 May 1990 and he became 
disabled before discharge was finalized.  

3.  The applicant provides:

	a.  The SPCMO number 24 that shows that the applicant was found guilty of stealing 
and sentenced to a bad conduct discharge, confinement for 30 days, and forfeiture of 
$350.00 pay per month for one month, adjudged on 12 January 1989.

	b.  The Army Court of Military Review Appellate approved and affirmed on              
30 November 1989.  

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

	a.  He enlisted in the Regular Army on 20 October 1987.  

	b.  His military personnel records is void of specific facts and circumstances 
concerning the events of pay or disbursements for the period of 1 March 1989 through 
1 May 1990.  

	c.  DA Form 4187 (Personnel Action) shows that his duty status changed from:

*	5 January 1989, present for duty to absent without leave (AWOL)
*	6 January 1989, AWOL to present for duty
*	12 January 1989, present for duty to confined military authority, the applicant 
surrendered at Fort Lewis, WA

	d.  The applicant elected not to undergo a medical examination for separation from 
active duty on 13 March 1989.  

	e.  SPCMO Number 3, dated 12 April 1990, he was convicted by special court 
martial of one specification of stealing and one specification of unlawfully entering the 
barracks room of another Soldier.  He was sentenced to forfeiture of $350 per month for 
one month, confined for 30 days, and discharged from the service with a bad conduct 
discharge, adjudged on 12 January 1989.  The sentence was approved and accepted 
for that part of the sentence extending to a bad conduct discharge, duly executed.  That 
portion of the sentence pertaining to confinement has been served.

	f.  He was discharged on 13 April 1990.  His DD Form 214 (Certificate of Release or 
Discharge from Active Duty) shows he was discharged under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, 
section IV, paragraph 3-11, bad conduct discharge, JJD (court martial, other).  His 
characterization is bad conduct.  He completed 2 year, 6 months, and 3 days of active 
service.  He had lost time from 5 January 1989, and 12 January 1989 to 2 February 
1989.  

	g.  The appellate review on 30 November 1989, shows the finding of guilty of 
unlawful entry into another Soldier’s barracks room and of stealing that Soldier’s 
compact disc player.  The findings of guilty and the sentence were affirmed.  

5.  By regulation 635-200, paragraph 3-11, 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.  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 serious, criminal nature of the misconduct, the Board agreed 
that the applicant's discharge characterization was warranted.

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.  AR 635-200 in effect at the time, provides 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 Condition) 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 
service in the following circumstances:  

*	when the reason for separation is based upon a pattern of behavior that 
constitutes a significant departure from the conduct expected of Soldiers of the 
Army
*	when the reason for separation is based upon one or-more acts or omissions that 
constitutes a significant departure from the conduct expected of Soldiers of the 
Army.  Examples of factors that may be considered include the following:  use of 
force or violence to produce serious bodily injury or death, abuse of a position of 
trust, or disregard by a superior of customary superior-subordinate relationships
*	acts or omissions that endanger the security of the United States or the health 
and welfare of other Soldiers of the Army  
*	deliberate acts or omissions that seriously endanger the health and safety of 
other persons
*	an other than honorable conditions discharge will be directed only by one of the 
following:  a commander exercising general court-martial jurisdiction, or a 
general officer in command who has a judge advocate or legal advisor available 
to his or her command

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)	 AR20170013706

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