ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  17 July 2019

	DOCKET NUMBER:  AR20180003166


APPLICANT REQUESTS:  to upgrade his dishonorable conditions discharge to a 
general, under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge From the Armed Forces 
of the United States)
*	DD Form 149 (Application for Correction of Military Record)

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 would like to use benefits to learn a trade and better himself.  
He did serve his country.

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

	a.  On 8 June 1984 he enlisted in the Regular Army.  

	b.  Following completion of training and award of military occupational specialty 
31M10 (Multichannel Communications Equipment Operator), on 7 January 1985 he was 
stationed at Fort Carson, CO.

	c.  On 5 August 1985, he was tried and was convicted by general court-martial for 
one specification of rape and carnal knowledge and one specification of sodomy by 
force and without consent of a child under the age of 16 years.  The court sentenced 
him to reduction to private (PVT)/E-1, forfeiture of all pay and allowances, confinement 
for 20 years, and dishonorable discharge.  

	d.  the convening authority approved only so much of the sentence as provided for a 
dishonorable discharge, confinement for 15 years, forfeiture of all pay and allowances, 
and reduction to PVT/E-1 is approved and, except for the dishonorable discharge, will 
be executed.  The record of trial was forwarded to The Judge Advocate General of the 
Army for appellate review.  

	e.  On 16 September 1986, the United States Court of Military Review found only so 
much of the finding of guilty of the specification of Charge I is affirmed as it finds that 
appellant, at the time and place alleged, committed the offense of carnal knowledge 
upon the female alleged.  The finding of guilty of Charge I is affirmed.  The finding of 
guilty of Charge II and the specification thereof are set aside and Charge II and its 
specification are dismissed.  Reassessing the sentence, only so much of the sentence 
is affirmed as provides for a dishonorable discharge, confinement for eight years, 
forfeiture of all pay and allowances, and reduction to PVT/E-1.

	f.  On 1 December 1986, the United States Court of Military Appeals denied the 
applicant’s petition for grant of review of the decision of the United States Court of 
Military Review.  On 12 December 1986 a Notice of Finality was issued regarding the 
denial and the finality of the conviction.  

	g.  On 6 January 1987, General Court-Martial Order Number 4 directed only so 
much of the finding of guilty of the specification of Charge I is affirmed as finds that 
appellant, at the time and place alleged, committed the offense of carnal knowledge 
upon the female alleged.  The findings of guilty of Charge I is affirmed.  The findings of 
guilty of Charge II and the specification thereof are set aside and Charge II and its 
specification are dismissed.  Only so much of the sentence as provides for dishonorable 
discharge, forfeiture of all pay and allowances, confinement for eight years, and 
reduction to PVT adjudged on 5 August 1985, and the sentence, as thus modified, has 
been finally affirmed and will be duly executed.

	h.  On 30 January 1987, he was discharged from active duty under the provisions of 
Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), 
paragraph 3-10 (DD Form 260A (Dishonorable Discharge Certificate)), and issued a 
dishonorable conditions discharge.  His DD Form 214 (Certificate of Release or 
Discharge from Active Duty) reflects that the completed 1 year, 1 month, and 27 days of 
active service with 543 days of lost time from 5 August 1985 to 30 January 1987.  It also 
shows that he was awarded or was authorized the:

*	Army Service Ribbon
*	Marksman Marksmanship Qualification Badge with Rifle Bar
*	Expert Marksmanship Qualification Badge with Grenade Bar

4.  By regulation, a member will be given a dishonorable discharge pursuant only to an 
approved sentence of a general 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.

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 involving serious criminal offenses, as well as 
the failure to accept responsibility and show remorse 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), in effect at 
the time, sets forth the basic authority 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 by not sufficiently meritorious to warrant an 
honorable discharge.

	c.  Paragraph 3-7c (Under Other Than Honorable Conditions) 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, homosexuality, security reasons, or for the good of service.

	d.  Paragraph 3-10 (DD Form 260A (Dishonorable Discharge Certificate)) states a 
member will be given a dishonorable discharge pursuant only to an approved sentence 
of a general 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 the 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, 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 upgrade service characterization.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180003166

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