ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 September 2019

	DOCKET NUMBER:  AR20170018296


APPLICANT REQUESTS:  

*	an upgrade of his bad conduct discharge and a change to his character of 
service
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) be issued

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 or Dismissal 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 he is trying to apply for military benefits, but is unable to do so 
until his discharge is reviewed.  He needs proof that he is a veteran to receive benefits 
and a DD Form 214 was never issued.  He is tired of suffering and he has medical 
problems, which requires care.

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

	a.  Having had prior service in the Army Reserve Delay Entry Program, he enlisted 
in the Regular Army on 5 November 1993.  He was assigned to 126th Transportation 
Company, Fort Bragg, NC from 5 May 1994 to 30 April 1996.  

	b.  On 28 June 1995, he was convicted by general court martial of three 
specifications of failure to go to appoint place of duty, one specification of being absent 
from unit without leave on 19 May 1995, and two specifications of willfully disobeyed a 
lawful order from his superior commissioned officer.  The sentence adjudged on 28 
June 1995.  The court sentenced him to a bad-conduct discharge, confinement for      
75 days, forfeiture of $550.00 pay per month for 6 months and reduction to Private/E-1.  
The sentence was approved, except for the bad conduct discharge.  

	c.  The appellate review on Special Court Martial Order Number 6, dated 30 April 
1995, shows the finding of guilty and the sentence approved by the convening authority 
correct in law and fact.  Accordingly, the finding of guilty finally affirmed the sentence 
and ordered the bad conduct discharge be executed.  

	d.  His service record is void of specific circumstances that led to his discharge, and 
a DD Form 214 showing that the applicant was properly discharged for the Board to 
review.  

	e.  The Army Discharge Review Board (ADRB), shows that the applicant was 
discharged with a bad conduct discharge, under the provisions of chapter 3, AR 635-
200 (Personnel Separation – Enlisted Personnel), by reason of court martial, other.  He 
was credited with 2 years, 5 months, and 6 days active service.  It also state that there 
was not DD Form 214 of record.  The applicant indicates that he was advised by the 
18th Airborne Military Personnel Center Separation Transfer Point that he would receive 
a copy of his DD 214 within a year.  Upon further research at the Enlisted Records and 
Evaluation Center, it appeared that the applicant was not properly discharge from the 
service and a DD 214 was never completed.  The Board president has determined that 
there is sufficient evidence of record upon which to consider the applicant’s request.

	f.  The ADRB, by letter, on 27 August 1999, to the applicant in responded to his 
request for correction of his military record.  The ADRB stated that after careful review 
of his application, military records and all other available evidence, the ADRB 
determined that he was properly and equitably discharged and denied his request to 
change his character and/or reason of his discharge.  

4.  By regulation 635-200, paragraph 3-11, 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.  

5.  By regulation 635-5 (Separation Documents) at the time established the 
standardized policy for preparing and distributing the DD Form 214.  The purpose of the 
separation document is to provide the individual with documentary evidence of their 
military service.  Chapter 2 of the regulation in effect at the time contains guidance on 
the preparation of the DD Form 214.

6.  The Board should 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 relief was warranted.  Based upon the misconduct which led to the 
applicant’s separation, the Board determined the characterization of service received 
was too harsh, which created an injustice which warranted correction.  As a result, the 
Board recommended upgrading the characterization of service to Under Honorable 
Conditions (General).

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 (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) 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 Condition) 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 
service in the following circumstances:  

*	when the reason for separation is based upon a pattern of behavior that 
constitutes a significant departure from the conduct expected of soldiers of 
the Army
*	when the reason for separation is based upon one or-more acts or omissions 
that constitutes a significant departure from the conduct expected of soldiers 
of the Army. Examples of factors that may be considered include the 
following:  use of force or violence to produce serious bodily injury or death, 
abuse of a position of trust, or disregard by a superior of customary superior-
subordinate relationships
*	acts or omissions that endanger the security of the United States or the health 
and welfare of other soldiers of the Army  
*	deliberate acts or omissions that seriously endanger the health and safety of 
other persons
*	an other than honorable conditions discharge will be directed only by one of 
the following:  a commander exercising general court-martial jurisdiction, or a 
general officer in command who has a judge advocate or legal advisor 
available to his or her command

3.  Army Regulation 635-5 (Separation Documents) at the time established the 
standardized policy for preparing and distributing the DD Form 214.  The purpose of the 
separation document is to provide the individual with documentary evidence of their 
military service.  Chapter 2 of the regulation in effect at the time contains guidance on 
the preparation of the DD Form 214.

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)	 AR20170018296

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