ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180002730


APPLICANT REQUESTS:  An upgrade of his bad conduct discharge (BCD) to general under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored letter, dated 1 January 2018
* Fort Polk military police report

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 has served his sentence and has been rehabilitated.  He has no other record other than this one incident before or since.  He was an honorable Soldier.

	a.  He is deeply remorseful for the pain, grief, and agony he has caused his family, himself and the U.S. Army.  He is pleading for his discharge of a bad conduct discharge be upgraded, because he feels it is an injustice.  He has always been an honorable, outstanding Soldier and he thinks it is an injustice to carry a lifelong punishment beyond his paid debt.  He is asking that his previous periods of honorable service, accomplishments, awards, leadership, key positions, and dedication be considered.  He made an irrational decision that costed him his military career to be abruptly ended.

	b.  He does not wish to make excuses or be unaccountable for his actions.  Records show he accepted responsibility and was confined without any infractions and has been fully rehabilitated.  He feels another form of non-judicial punishment would have been justifiable.  He endured physical abuse that was not brought before his command and general courts-martial, although he brought the abuse to the attention of his superiors numerous times.
	c.  His attorneys did not look into his allegations of abuse at Fort Polk, LA prior to his proceedings as if he was simply making up a story.  His spouse became more and more aggressive over the years as she was obsessed with the belief the Army could not prosecute her because she was a civilian.  This led to his meltdown and poor judgement.  He attempted over the years to not end the marriage for the sake of his children.  He placed himself last as he learned to do in the military.  All the facts of his case were not presented at the time of his trial.

	d.  He tried to continue his career after confinement, he was finally forced to accept that was not a possibility.  His dedication proves he did not have any animosity or grievance toward the military.  He feels if all facts were presented, his command may not have taken him to courts-martial.  He pleads the Board to look thoroughly at his case and consider all documents in order to make a favorable decision to his upgrade request.

3.  The applicant provides

* Self-authored letter, dated 1 January 2018, addressed above
* Fort Polk military police report showing the applicant was a victim of aggravated assault in a domestic disturbance by his spouse in which she stabbed him and then resisted the officers on the scene

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

	a.  He enlisted in the Regular Army on 23 January 1987.

	b.  On 22 August 1994, General Court-Martial Order number 126, dated 10 November 1994 shows the applicant was arraigned at Fort Sill, OK.  He was convicted of the charges and specifications of attempted murder, violation of a lawful general regulation, willfully destroy military property of the United States, commit an assault, and wrongfully and willfully discharge a weapon, under circumstances such as to endanger human life.  The court sentenced him to be reduced to the grade of private/E-1, to be confined for five years and to be discharged from the service with a bad conduct discharge.  The convening authority approved the sentence and except for the bad conduct discharge, will be executed.

	c.  On 6 October 1995, the Appellate Military Judges determined on consideration of the entire record, including consideration of the issues personally specified by the appellant, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence are affirmed.

	d.  General Court-Martial Orders Number 77.3, issued by Headquarters, U.S. Disciplinary Barracks Fort Leavenworth, KS, on 3 June 1996, states the sentence has been finally affirmed.  That portion of the sentence extending to confinement has been served.  The bad conduct discharge will be executed.

	e.  On 22 November 1996, the applicant was discharged accordingly.  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) paragraph 3-11, and issued a bad conduct discharge.  He completed 7 years, 5 months, and 23 days of active service.  He had continuous honorable active service from 23 January 1987 until 15 July 1994.

5.  By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a BCD 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.  Court-martial convictions stand as adjudged or 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.

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.  Based upon the misconduct resulting in the applicant’s separating being of a serious, criminal nature, as well as the failure to fully accept responsibility 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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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.

	a.  Paragraph 3-7a, provides that 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.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

	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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180002730


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