ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170019000 APPLICANT REQUESTS: upgrade of his bad conduct discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214), dated 8 March 1993 * Certificate of Training for Aircraft Common Hardware Course, dated 13 October 1988 * Certificate of Training for Safetying Procedures Course, dated 17 October 1988 * Certificate of Training for Basic Hydraulics and Hydraulic Plumbing Course, dated 19 October 1988 * DA Form 4856 (General Counseling Form), dated 22 October 1988 * Certificate of Training for Aircraft Technical Drawings Course, dated 27 October 1988 * Expression of Commendation Letter, dated 2 November 1988 * Certificate of Achievement for exceptional performance, dated 2 November 1988 * Certificate of Achievement for Squad Leader, dated 10 November 1988 * University of Maryland, Asian Davison Certificate for Korean Language and Culture Course, dated 23 December 1988 * Certificate of Training for Sure-Pay Course, dated 3 January 1989 * Certificate of Appreciation for Team Spirit 89, dated 8 May 1989 * Certificate of Achievement for Outstanding Support, dated 30 May 1989 * Certificate of Achievement for Exemplary Community Volunteer Service, dated 13 October 1989 * Letter of Appreciation for Community Support * February 1990 Aviation Life Support Equipment Technician Course (ALSE) * Certificate of Training for Small Engine Repair Class * Vocation Employment Training for Custodial Work, dated 9 August 1992 * German Liaison Officer Thank You Letter, dated 12 May 1993 * Congratulatory Letter from the Commandant, dated 26 May 1993 * Certificate for Lay Speaker/Advanced lay Speaker, dated 29 Mach and 2 May 2005 * 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 was an outstanding Soldier while on duty for the US Army and he would like to receive healthcare and benefits for that time. Since his time in service, he has been through both the basic and advanced lay speaker courses and he’s been active with his church since 2002 and started a contemporary youth service. He is assigned as the multi-media director for the St. Mathews United Methodist Church. He is 51 years old now and he’s been clean and sober for 24 years now. 3. The applicant provides several training certificates, certificates of achievement, certificates of safety, and/or performance certificates to highlight some of his in-service and post-service accomplishments. 4. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 19 April 1988. b. On 9 December 1991, he was found guilty and convicted by a general court- martial of: * one specification of being absent without leave from 2 July 1991 to 10 July 1991 * one specification of larceny of three blank checks, of some value, on 14 June 1991 * one specifications of larceny of private property, of some value, on 19 May 1991 * one specification of forgery with intent to defraud on 14 June 1991 * one specification of forgery of two checks with intent to defraud on 15 June 1991 * one specification of dishonorably failing to pay just debt on 10 July 1991 * one specification of larceny of two blank checks, of some value between 16 and 17 July 1991 * one specification of forgery with intent to defraud on 16 July 1991 * one specification of forgery with intent to defraud on 17 July 1991 c. The court sentenced him to reduction to the grade of E-1, total forfeiture of all pay and allowances, confinement for three (3) years, and a bad conduct discharge. a. d. On 31 January 1992, the convening authority approved a lesser sentence of reduction to E-1, total forfeiture of all pay and allowances, confinement for eighteen months, and a bad conduct discharge and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. e. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. f. General Court-Martial Order Number 85, issued by the U.S. Army Field Artillery Center, Fort Sill, OK, on 21 September 1992, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. g. The applicant was discharged on 16 October 1992. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. (1) He completed 3 years, 6 months, and 7 days of active military service with lost time from 6 June 1990 to 17 June 1990, 4 July 1990 to 25 July 1990. After normal expiration of service (ETS) 2 July 1991 to 9 July 1991 and 9 December 1991 to 16 October 1992. (2) His service was characterized as bad conduct and he was assigned separation code JJD. His DD Form 214 also shows he was awarded or authorized the Southwest Asia Service Medal with 2 bronze service stars, Kuwait Liberation Medal, National Defense Service Medal Army Service Ribbon, Overseas Service Ribbon and Aircraft Crew-member Badge. 4. By regulation, 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. 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. 4. 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 stigma that bad conduct discharge may have with those aware who have knowable of how they are obtained, through courts-martial convictions, the Board concluded that providing some clemency based upon the passage of time, the punishment already completed, and positive live changes, that granting by upgrading the characterization of service to Under Other than Honorable Conditions 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 Other than Honorable Conditions. 845 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 Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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, security reasons, or for the good of service in selected circumstances. d. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. 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 1. clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. Army Regulation 635-5-1 (Separation Program Designator Codes) states SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty. SPD code JJD is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. 6. 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.