ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170016659


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge to general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for 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 that he believes the punishment that he received for an Article 15 was very severe.  They put him up for a summary court martial for refusing to refuel a vehicle, but there was no vehicle for him to refuel.  The same colonel that charged him then told him he no longer had an attorney.  He left the parking lot and the colonel said that the applicant hit him with his vehicle.  This was untrue, he did not hit anyone with his vehicle.  He wanted to make the military his life and loved serving his country.  

3.  The applicant’s service record shows:  

a. He enlisted in the Regular Army (RA) for 3 years on 19 December 1974.  He 
served in Germany from 21 June 1975 to 3 April 1978.  

	b.  He was honorably discharged on 26 June 1977 for immediate reenlistment.  He was issued a DD Form 214 (Report of Separation from Active Duty) that credited him with 2 years, 6 months, and 8 days of active service.  He reenlisted in the RA on 27 June 1977.  

	c.  On 13 June 1980, he was convicted by special court martial of one specification of failing to obey a lawful order, one specification of disrespect to a superior commissioned officer, one specification of being absent without leave (AWOL), two specifications of disobeying a lawful order, one specification of battery, one specification of resisting arrest, and one specification of assault.

	d.  The court sentenced him to a bad-conduct discharge, to be confined for a period of 6 months to forfeit $200 pay per month for six months, and to be reduced to the grade of E-1.  

	e.  Special Court-Martial Order Number 39, dated13 June 1980, shows the convening authority approved the sentence and except for that part of the sentence extending to a bad-conduct discharge, ordered the sentence executed by the convening authority.  The record of trial was forwarded to the appellate authority for review. 

	f.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 28 January 1981.

	g.  An unsigned Notice to Accused notifying him of his right to appeal the decision to the U.S. Army Court of Military Appeals is in his record.  The signed version is not in the record.

	h.  Special Court-Martial Order Number 137, dated 4 May 1981, affirmed and ordered the sentence duly executed.

	i.  On 11 May 1981, he was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with AR 635-200 (Personnel Separations – Enlisted Separations) paragraph 11-2, with a bad conduct discharge.  His DD Form 214 shows he completed 3 years, 6 months, and 1 day with 972 days of lost time.  It also shows he was awarded or authorized a Good Conduct Medal and the Expert Rifle M-16 Qualification Badge.

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, 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.


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 misconduct involving violent behaviors towards others and a lack of character evidence submitted by the applicant to show he has learned from the events leading to his discharge, the Board concluded that the characterization of service received at the time of separation was appropriate.

However, 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 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 19 December 1974 until 26 June 1977.”
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.  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 Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-13a (Honorable Discharge ) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.  

	b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent nonjudicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or discharge under less than honorable conditions.  When member’s service is characterized as general, except when discharge by reason for unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record.

	c.  Paragraph 11-2 states 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 (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.  

ABCMR Record of Proceedings (cont)	 AR20170016659


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