ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20170015368


APPLICANT REQUESTS: reconsideration of his previous case to upgrade his dishonorable discharge to general.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Applicant’s statement

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100013447 on 18 November 2018.

2.  The applicant states he takes full responsibility for his life and actions.  He is responsible for any and all wrongs he has done to the citizens of this country.  He wishes to apologize to the United States Army for his inability to perform his duties as a professional Soldier.  He requests a positive decision for an upgrade of his dishonorable discharge to a general.  He said he should not have joined the Army due to the physical and mental problems dating back to his child hood.  He truly apologizes to the United States Army for not being able to do the job he was trained for.

3.  A review of the applicant record shows:

a. He enlisted in the Regular Army on 27 July 1976.  

	b.  He reenlisted on 8 May 1980 and 1 March 1983.  He served in Germany from 5 September 1980 to 26 August 1983.

	c.  He again reenlisted on and 27 July 1988.  He served in Germany from 25 January 1985 to 17 September 1988.

	d.  On 6 December 1988, he was convicted by a general court-martial of one specification of attempted murder, one specification sodomy and one specification of housebreaking.  The court sentenced him to forfeiture of all pay and allowances, confinement for 15 years, and a dishonorable discharge.  

	e.  On 20 January 1989, the convening authority approved the sentence and except for the dishonorable discharge ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

	f.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 11 May 1989.

	g.  General Court Martial Order 315, dated 30 August 1989, shows the sentence had been finally affirmed and the dishonorable discharge would be executed. 

	h.  He was discharged from the Army on 6 October 1989.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she was discharged under the provision of Army Regulation635-200 ( Personnel Separations – Enlisted Personnel), paragraph 3-10.  He completed 12 years, 1 month and 23 days of active service.  Dates of lost time are from 20 September 1988 to 6 October 1989.  It also shows he was awarded or authorized:

* Good Conduct Medal (4th Award)
* Army Commendation Medal
* Army Achievement Medal (2nd Oak Leaf Cluster)
* Army Service Ribbon
* Non Commissioned Professional Development Ribbon (2)
* Driver/Mechanic Badge
* Sharpshooter Marksmanship Badge with Rife Bar (M-16)

4.  By regulation, AR 635-200, a Soldier will be given a dishonorable 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.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the serious, criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

However, the Board did note that the applicant had prior periods of honorable service which are not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 27 July 1976 until 26 July 1988.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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.  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.

2.  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.

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.  

ABCMR Record of Proceedings (cont)	 AR20170015368


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