ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170015230 APPLICANT REQUESTS: an upgrade of his bad conduct discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veteran Affairs (VA) Form (Statement in Support of Claim) 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 regrets the choices he made when he was younger. However he is now a business owner and respectful member of his community. 3. The applicant provides a VA Form (Statement in Support of Claim) which states: a. He was moved to a different company, singled out and bullied by the corporal in charge and fellow soldiers. He notified his platoon sergeant and other soldiers confirmed the corporal “played favorites” amongst the group. The applicant believes that because he brought the matter to the attention of leadership, the corporal held a grudge and continued to bully him to the point that he went absent without leave (AWOL). When was apprehended by authorities he was on drugs. However, prior to being AWOL, he was a soldier and intended to be a career soldier. b. In the Statement in Support of Claim, he refers to 3 letters of support; however, there were no letters submitted with the application. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 February 1990. a. b. On 23 August 1991, the applicant’s command reported him AWOL effective 22 August 1991. c. On 10 December 1991, a trial was held by special court-martial. He was convicted of: * one specification of wrongful use of a methamphetamine * one specification of being AWOL from 22 August 1991 to 17 September 1991 d. The Court sentenced him to confinement for 4 months, reduced him to the grade of E1, forfeiture of $502 pay for 4 months and a bad conduct discharge. e. On 6 February 1992, the convening authority approved the sentence and except for that portion of the sentence extending to a bad conduct discharge, would be executed. The accused was credited with 177 days confinement against his sentence to confinement. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. f. On 15 June 1992, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. g. Headquarters, 7th Infantry Division (Light) and Fort Ord, CA, Special Court- Martial Order Number 2, dated 7 January 1993, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s reduction of grade to E1, forfeiture of $502 pay for 4 months and the bad conduct discharge executed. h. On 27 April 1993, the applicant was discharged from the Army under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with a Bad Conduct Discharge Certificate. His DD Form 214 shows he completed 3 years and 1 month of active service and 36 days of lost time. 5. By regulation, (AR 635-200), a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been 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. 1. 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 record, 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. 6/26/2019 X CHAIRPERSON Signed by 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 Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (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 that 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. d. Chapter 3 of this regulation states that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been 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 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.