ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 May 2019

	DOCKET NUMBER:  AR20170019002


APPLICANT REQUESTS: 

* an upgrade of his bad conduct discharge to general under
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge)
* Commercial Driver License
* DD 214 (Certificate of Release or Discharge from Active Duty)
* Five Character Reference Letters

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 his bad conduct discharge was unfair because of his immaturity and the lack of understanding of the responsibility that was expected to uphold.  He states since being discharged from the Army he had some trying time and struggles, but soon figured out he had to re-dedicate his life to become the man he wanted to be.  He wanted to break away from his troubles and despair and attempt to start a fresh new life.  He states thanks to his Army training he began to work in the transportation industry starting out as a local hauler and advancing forward by learning and getting certifications to become the successful and dedicated employee he is today.  He stated this not only helped him financially but helped him to create a better life for his family and himself and keep him away from the bad habits he had created in his past.  The applicant joined church and dedicated his life to the Lord and soon after became involved with his church and the community affairs of which it was devoted to.  He stated eventually it led him to realize that he could become whatever he wanted to be in life.  The applicant felt he has conducted himself properly and has become a productive citizen, family man, neighbor, employee, and servant to his community.  Therefore he is asking for consideration and he feels like he deserves to have his discharge upgraded.

3.  The applicant provides:

	a.  Reference letter from X____, dated 14 June 2017, the applicant worked for him since 31 March 2014.  In the three years of employment, he has been an excellent employee and has trained several drivers.  The applicant displays a very professional manner which carries over to the individuals he trains.  He recommends removing the bad conduct discharge so the applicant can clear his name.

	b.  Reference letter from X____, dated 30 June 2017, which states the applicant has been employed with the company as a Hazardous Materials Driver since 2014 and moved into a Driver Trainer role in 2016.  The applicant has proven to be a real asset to our Company and has shared his knowledge of driving and the tank truck industry by becoming a Driver Trainer.  He knows the applicant to be a trusted, dependable and honorable person and has been dedicated to giving back to a profession that he has served for so many years.  He truly cares about the people he meets and trains in an industry where safety and security are of the highest priority.  X____is writing this letter on his behalf for consideration in his efforts to clear and change his military discharge status.  He writes this letter of reference in support of the applicant.  

	c.  Reference letter from X____, dated 25 July 2017, which states he has known the applicant for approximately twelve years.  When he first met the applicant he was struggling with a lot of personal issues in his life.  After he accepted Jesus as Lord in his life he saw him change.  He saw him as he began to reach out to others and become a servant to people who needed things in their life.  He volunteered to drive our church bus and became instrumental in making sure the people from the homeless shelter and those living in places without transportation could come to church each Sunday.  He went above the call of duty and actually took ownership of this ministry.  He began to bake cakes and stop by McDonalds and purchase breakfast for the people.  He wanted to make sure that they were not only being fed spiritually but physically also.  He has shown genuine concern and love for the people he serves.  The applicant has continued to be a part of this body of believers at Stokesdale Church of God.  When he is not out of state and on the road with his truck driving job he supports us with his presence and is now assisting our Youth Department with a summer garden.  He has proven himself dependable, and dedicated to whatever he aspires to do.  The church is honored and blessed that he is part of this Body of Believers.  

	d.  Reference letter from X____, dated 28 July 2017, which states he writes this letter of reference in support of the applicant.  He has known the applicant for approximately 7-8 years.  He has come to know him as an upstanding citizen and someone with clear convictions about doing what is right and helping when there is a need.  At their church he is continually assisting the church in matters, especially those he is familiar with and enjoys.  When he is not working he enjoys preparing our church youth garden in early spring for the youth department by plowing, tilling and even planting the vegetables for our garden.  He often brings vegetables from his own personal garden to the church to share with church members, which we can tell brings him a lot of enjoyment.  On his days off they can at anytime drive by and find him working their church landscaping by cutting trees and brush and disposing of debris.  He also is a bus driver for our bus ministry.  The applicant has proven to the church throughout the years his willingness to serve their church in whatever capacity he is able.  He makes sure things get done and that they are done correct.  He always considers the needs of the church first and what will work best for the church in his decisions concerning church business.  They are very appreciative to have members whose dedication is just not talk, but is backed by service and kind deeds.

	e.  Reference letter from X____, which states he has known the applicant for approximately 8 years as his friend and neighbor.  He knows that the applicant is a very good neighbor, father, worker and Christian Man.  He and the applicant have shared and maintained a border property garden for several years.  They also worked together to maintain ours and our neighbors properties when they need assistance with any jobs in the neighborhood from chain sawing to scrapping and hauling of waste items.  He attends church services on the Sundays that he is not on the road and is an integral part of his Church Community including driving a bus and delivery and pick-up of members of his congregation that are not capable of driving.  He also assists with maintenance of the churches vans and bus.  He is a devoted family man and spends time with his son and grandchildren 

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

	a.  He enlisted in the Regular Army on 8 July 1980.

	b.  On 3 May 1991, he was convicted by a special court martial of seven counts of failure to obey a lawful order.  The court sentenced him to reduction to the grade of E-1, forfeiture of pay and allowances, confinement for 3 months, and a bad-conduct discharge.

	c.  Special Court-Martial Order Number 5, dated 19 June 1991, approved the sentence 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.

	d.  On 1 October 1991 the U.S. Court of Military Review affirmed the finding of guilty and the sentence. 

	e.  Special Court-Martial Order 1 dated 21 January 1992, affirmed the sentence and ordered the bad conduct discharge be executed.

	f.  The applicant was discharged on 20 August 1993.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of his special court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge.  His DD Form 214 shows:

* continuous honorable service 800708- 900311
* he completed 12 years, and 11 months of creditable active military service with lost time from 3 May 1991 to 14 July 1991
* he was awarded or authorized: 

* Army Service Ribbon
* National Defense Service Medal
* Overseas Service Ribbon – 2nd
* Drivers Badge
* Army Achievement Medal – 6th
* Drivers Mechanic Badge with Bar
* Army Good Conduct Medal 3rd
* Army Commendation Medal
* Marksmanship Qualification Badge (M-16)
* Sharpshooter Qualification Badge Hand Grenade
* Noncommissioned Officer Professional Development Ribbon 2nd

5.  By regulation (AR 635-200), 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.

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 type of misconduct, the demonstrated growth of the applicant through the character evidence submitted, as well as the lengthy honorable service prior to the misconduct, the Board concluded that upgrading the 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 provides for the separation of enlisted personnel: 

	a.  Paragraph 3-7a provides 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 provides that 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.  Paragraph 3-7c states 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.  Paragraph 3-11 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 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.

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)	 AR20170019002


5


1