ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  23 May 2019

	DOCKET NUMBER:  AR20170017736


APPLICANT REQUESTS:  an upgrade to his bad conduct discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Letter
* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* Special Court-Martial Order 1
* Motion to Dismiss

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 main reason for receiving a court-martial was for having an unlawful, unregistered firearm in his possession.  During that time, the number of Soldiers that were carrying unlawful and unregistered firearms on Fort Bliss was out of control.  The Major General at the time wanted to set an example for all of the other Soldiers that might be carrying an unlawful and unregistered firearm.  The firearm charge against him was dismissed by the Military Judge and the Burglary/Larceny charges were dismissed by the State of Texas.  He has worked for the City of El Paso for 11 years as a Utility Plant Technician and will be testing for an “A” water license.

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

	a.  He enlisted in the Regular Army on 26 April 1989.

	b.  He served in Saudi Arabia from 16 October 1990 to 6 April 1991.

	c.  On 24 January 1992, he was convicted by a special court-martial of:

* one specification of failing to register a pistol (Dismissed by military judge)
* one specification of wrongfully appropriate of personal property of a value in excess of $100.00(Dismissed by military judge)

	d.  The court sentenced him to a bad-conduct discharge.

	e.  Special Court-Martial Order Number 1, dated 24 January 1992 approved the sentence and ordered the sentence executed by the convening authority.

	f.  On 22 July 1992, the U.S. Army Court of Military review affirmed the finding of guilty and the sentence.

	g.  He was discharged on 7 January 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 8 months, and 7 days of active service.  His DD Form 214 also shows in:

* item 4b (Pay Grade), E-1
* item 12h (Effective Date of Pay Grade), 24 January 1992 (the date the sentence was adjudged)
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):  Southwest Asia Service Medal (2 Bronze Stars), Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Expert Qualification Badge, Hand Grenade, Marksman Qualification Badge, M-16 Rifle, Overseas Service Bars (1), Kuwait Liberation Medal)
* item 24 (Character of Service), Bad Conduct Discharge
* item 25 (Separation Authority), Chapter 3, Section IV, Army Regulation 635-200 (Personnel Separations – Enlisted Separations)
* item 28 (Narrative Reason for Separation), as a Result of Court-Martial

4.  By regulation/directive:

	a.  A member 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.  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 relief was warranted.  Based upon the type of misconduct which led to the discharge, as well as the character evidence submitted by the applicant to show he has learned and grown from the events which led to his separation, the Board concluded that granting clemency by upgrading his characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states that 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 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 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states a member 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.

3.  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 UCMJ, 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 UCMJ 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.

4.  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)	 AR20170017736


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