BOARD DATE:  31 January 2020

DOCKET NUMBER:  AR20180003857


APPLICANT REQUESTS:  Change to the entry in item 28 (Narrative Reason for 
Separation) DD Form 214 (Certificate of Release or Discharge from Active Duty).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 for period ending 28 December 2007

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 had his discharge upgraded and he feels the narrative 
reason for separation should be upgraded as well.  He received his upgrade, but due to 
the narrative reason of court-martial still being on his DD Form 214, he is still being 
denied some benefits such as through USAA (United Services Automobile Association) 
and AAFES (Army and Air Forces Exchange Service) because of it.  He has a service 
connected [disability] and the [Army Discharge] Review Board found that he was 
qualified for the upgrade and that the punishment was too severe.

3.  On 22 May 2001, at the age of 18 years old, the applicant enlisted in the Regular 
Army for a term of 3 years.

4.  His Defense Finance and Accounting Service record shows he was deployed in 
Kuwait from 1 February 2003 to 31 May 2003.

5.  On 22 March 2004, the applicant was convicted by special court-martial for:

*	four specifications of failing to report at the time prescribed to his appointed place 
of duty
*	one specification of disrespect towards a noncommissioned officer 
6.  He was sentenced to forfeiture of $795.00 pay per month for two months, 
confinement for two months, and to be separated from the service with a bad conduct 
discharge.  On 23 July 2004, the sentence was approved and, with the exception of the 
bad conduct discharge, ordered executed.  The applicant was credited with 26 days 
pretrial confinement credit towards post-trial confinement.

7.  Special Court-Martial Order Number dated 17 July 2007, shows the sentence 
adjudged on 22 March 2004 was finally affirmed and the bad conduct discharge was 
ordered executed.

8.  On 28 December 2007, the applicant was discharged accordingly.  His service was 
characterized as bad conduct under Army Regulation (AR) 635-200, Chapter 3.  He 
completed 6 years, 5 months, and 26 days of net active service this period.  His 
DD Form 214 shows:

*	Item 28 (Narrative Reason for Separation):  "Court-Martial, Other"
*	Item 29 (Dates of Time Lost During This Period):  20040322 – 20040502 
(42 days of military confinement)

9.  On 22 June 2010, the Army Discharge Review Board (ADRB) granted the applicant's 
request for an upgrade of his discharge from a bad conduct to a general, under 
honorable conditions discharge, determining that clemency was warranted based on the 
length and quality of his service to include his combat tour in Iraq and post service 
achievements.  The ADRB Case Report and Directive states:  "The applicant reported 
that he received three Articles 15, for disrespect and stealing at the PX [post exchange]. 
The documentation is not contained in the record"; "[a]pplicant stated during his 
testimony that he served in Iraq, not reflected in the official record;" and "[a]pplicant 
states he is graduating with his MBA [Master of Business Administration] in May 2010."  

10.  AR 635-200 (Active Duty Enlisted Administrative Separations) states a Soldier 
would be given a bad conduct discharge pursuant only to an approved sentence of a 
general or special court-martial and after completion of appellate review and after such 
affirmed sentence has been ordered duly executed.

11.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  The Board is not empowered to set aside a conviction, but is only 
empowered to change the severity of the sentence imposed in the court-martial 
process.  





BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, and 
evidence in the records.  The Board considered the applicant's statement, his record of 
service, the frequency and nature of his misconduct, and the reason for his separation.  
The Board considered the applicant's upgraded character of service, but found 
insufficient evidence of mitigating factors that would support further clemency by 
changing the reason for separation.  Based on a preponderance of evidence, the Board 
determined the narrative reason for separation shown on the applicant's DD Form 214 
is neither in error nor unjust.  

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 (AR) 635-200 (Personnel Separations – Active Duty Enlisted 
Administrative Separations), in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.  Chapter 3 (Character of Service/Description of 
Separation), Section III (Dishonorable and Bad Conduct Discharge) stated an enlisted 
person will be discharged with a bad conduct discharge pursuant only to an approved 
sentence of a general or special court-martial, following the completion of an appellate 
review, and after such affirmed sentence had been ordered duly executed.

3.  Title 10, section 1552 provides 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 Army Board for 
Correction of Military Records 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180003857


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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