ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20170017005


APPLICANT REQUESTS: an upgrade of his characterization of service from Bad Conduct to Honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Page 3 of DD Form 1966 (Record of Military Processing)
* Department of Veterans Affairs (VA) Letter
* Extract from Title 38 of the Code of Federal Regulations (38 CFR) 3.12
* Applicant Letter to VA
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* Letter of Support (XX)
* Letter of Support (XX)
* Letter of Support (XX)

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 stayed in the military beyond his expiration terms of service (ETS) date.  He claims his discharge was supposed to be automatically upgraded after one year, and he has written to the VA twice about his case.  He states he received a letter back, and he has followed all steps regarding an upgrade.  He states the discharge was for aiding and abetting and it was unfair because no one else was charged.  He missed three parole hearings within a 16 month period because he was told that his record trial could not be found.


3.  The applicant provides:  

	a.  Page 3 of DD Form 1966, dated 5 September 1997, which states that the applicant was temporarily disqualified by the U.S. Navy to determine law violation.  It also shows that The United States Army Recruiting Command (USAREC) Plans and Policy representative classified his charge of aiding and abetting as a misdemeanor.

   b.  VA Letter, dated 12 March 2014, which states the applicant characterization of service is pending review to determine his benefits eligibility.
   
   c.  Extract from 38 CFR 3.12, undated.
   
   d.  Applicant Letter to VA, dated 6 May 2014, which states that the applicant was charged with conspiracy for driving a vehicle to and from a suspected drug sale.  He states that he was young and that his discharge was supposed to be upgraded after his imprisonment was complete.  He states that he felt proud of his service and showed pride while performing his duties.  He states he did everything that was asked of him as a Soldier and feels he deserve the VA Benefits.
   
   e.  VA Form 21-22, which states that the applicant is requesting representation from a Veterans Service Organization.
   
   f.  Letter of Support (XX), which states that the applicant has worked for the individual for the last three years , in different positions within the company.  He states that the applicant is very dependable, loyal, and gets along good with the other workers, and especially the customers.
   
   g.  Letter of Support (XX), dated 14 September 2017, which states that the author is the applicant’s aunt and she sees him as a good father, brother nephew and son.   She states that the applicant does not have much, but he is willing to share what he has.  He may have made mistakes in the past, but his work in the community is sincere.
   
   h.  Letter of Support (XX), dated 13 September 2017, which states the applicant is dedicated to the community service projects such as providing school supplies to those in need.  They also donate food during the holidays, as well as gifts during Christmas.  The applicant is an important part of this community service.

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

	a.  He enlisted in the Regular Army on 15 October 1997.

	b.  His DA Form 2-1 (Personnel Qualification Record), reflects that he was imprisoned for a period of 405 days from 2 June 2000 to 12 July 2001.

	c.  The details and circumstances regarding the applicants General Court Martial are not available for the Board.

	d.  General Court Martial Order Number 366, dated 24 October 2003, stated that the provisions of Article 71(c) Uniformed Code of Military Justice has been complied with, and the sentence has been finally affirmed.  It also stated that the portion of the sentence to confinement has been served.

	e.  He was discharged on 4 June 2004 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 3 (Character of Service/Description of Separation) with a Bad Conduct Discharge.  His DD Form 214 Certificate of Release or Discharge from Active Duty), shows he completed 5 years, 6 months, and 4 days with 405 days of lost time from 2 June 2000 to 12 July 2001.  It also shows in:

* Item 13 (Decorations, Medals. Badges. Citations and Campaign Ribbons Awarded or Authorized): 

* Army Service Ribbon
* Marksman Marksmanship Badge with Rifle Bar (M16)
* Sharpshooter Marksmanship Badge with Hand Grenade Bar

* item 23 (Type of Separation), Discharge
* item 24 (Character of Service), Bad Conduct
* item 25 (Separation Authority), Army Regulation 635-200, Chapter 3, Sec IV
* item 26 (Separation Code), JJD (Courts Martial)
* item 28 (Narrative Reason for Separation), Court Martial – Other

5.  The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation.

6.  By regulation, AR 635-200, in effect at that time, 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

7.  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.  The reason behind his court-martial was not available for review.  Based upon being found guilty of criminal charges, as well as his 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.  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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

	a. Paragraph 3-11 provided that 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.

	b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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.

	c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

4. Court-martial convictions stand as adjudged or as modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.

5.  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)	 AR20170017005


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