ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20180003834


APPLICANT REQUESTS:  upgrade of his bad conduct discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored statement

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 made a huge mistake which caused him his career in the military.  After serving in the Gulf War (Desert Shield/ Storm) in 1990 thru 1991, he was redeployed to Korea were he made his mistake that caused him to lose his career.  He served his time for what he did and he received a bad conduct discharge with the option that he sustain a job and stay out of trouble for 3 years.  This is what his lawyer told him and handed him a form, which he could send in for consideration, for a reconsideration of his bad conduct discharge to a general discharge.  He further states he has not been in any trouble since his discharge in 1995.

3.  The applicant provides a self-authored statement and his DD Form 214 (Certificate of Release or Discharge from Active Duty).  In his self-authored statement he summarizes the fact that he made a mistake that ended his military career with a bad conduct discharge and he has been law-abiding since that time.

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

a. He enlisted in the Regular Army on 4 November 1987.

b. On 17 March 1994, he was found guilty and convicted by special court-martial of:

* one specification of larceny of nine checks, of a value less than $100.00 between 26 December 1993 and 16 January 1994
* one specification of larceny of a check, of a value less than $100.00 on 21 January 1994
* one specifications of larceny of United States currency, of a value of $1,350.00, between 29 December 1993 and 16 January 1994
* one specification of forgery of nine checks in the total amount of $1,350.00, between 29 December 1993 and 16 January 1994

	c.  The court sentenced him to reduction to the grade of E-1, total forfeiture of $554.00 per month for six months, confinement for 135 days, and a bad conduct discharge.

	d.  On 17 March 1994, the sentence was adjudged and the convening authority agreed to refer all charges and specifications to a Special Court-Martial empowered to adjudge a bad conduct discharge; agrees to suspend for 5 months any period of adjudge confinement in excess of 5 months; if full restitution is not made prior to convening authority’s action, convening authority may approve any lawfully adjudged sentence. 

	e.  On 7 June 1994, the applicant by Special Court-martial Order Number 3 was arraigned in Seoul, Korea, on the following offenses:

* one specification of larceny of nine checks, of a value less than $100.00 between 26 December 1993 and 16 January 1994
* one specification of larceny of a check, of a value less than $100.00 on 21 January 1994
* one specifications of larceny of United States currency, of a value of $1350.00, between 29 December 1993 and 16 January 1994
* one specification of forgery of nine checks in the total amount of $1350.00, between 29 December 1993 and 16 January 1994

	f.  On 7 June 1994, the special court-martial approved the sentence and except for that part extending to a bad-conduct discharge will be executed.

	g.  On 7 July 1994, the applicant was placed on excess leave pending appellate review of his sentence to bad-conduct discharge.

	h.  Special Court-Martial Order Number 11, issued by the Headquarters, US Army Armor Center and Fort Knox, Fort Knox, Kentucky, on 3 March 1995, shows the sentence to bad-conduct discharge, reduction to the grade of Private E1, forfeiture of $554.00 pay per month for 6 months, and confinement for 135 days, adjudged on 17 March 1994, as promulgated in Special Court-Martial Order Number 3 has been finally affirmed.  Having been complied with, the bad-conduct discharge will be executed and that the portion of the sentence pertaining to confinement has been served.

	i.  The applicant was discharged on 18 April 1995.  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 7 years, 1 month and 25 days of active military service with lost time from 17 March 1994 to 6 July 1994.

      (2)  His service was characterized as a bad conduct and he was assigned separation code JJD.  His DD Form 214 also shows he was awarded or authorized:

* Southwest Asia Service Medal with 2 bronze service stars
* Army Achievement Medal with 1 oak leaf cluster
* Good Conduct Medal-2nd Award
* National Defense Service Medal
* Army Service Ribbon
* Expert Qualification Badge M16
* Expert Qualification Badge Hand Grenade
* Driver and Mechanic Badge
* Kuwait Liberation Medal

5.  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. 

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 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 multiple offenses of larceny and the amount involved, 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 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 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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180003834


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