ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20180004334


APPLICANT REQUESTS: an upgrade to his dishonorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
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 have his discharge upgraded.  It has been       20 years and he believes he has paid his dues.  He served 9 months in the brig and he’s never asked for an upgrade until now.  He would like to enjoy using the Veterans Administration (VA) benefits.

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

	a.  He enlisted in the Regular Army on 3 January 1996.

   b.  On 12 December 1996, he was convicted by General Court-Martial Order Number 5 for the following charges and specifications:

* on 30 September 1996, conspire to commit forgery of the signature of another to personal checks
* on 9 October 1996, conspire to commit larceny of government funds
* on 1 thru 5 August 1996, absent himself from his unit in an absent without leave (AWOL) status
* on 20 thru 21 August 1996, absent himself from his unit in an AWOL status
* on 9 thru 13 September 1996, absent himself from his unit in an AWOL status
* on 13 September 1996 to 11 October 1996, absent himself from his unit in an AWOL status
* on 10 thru 14 January 1997, absent himself from his unit in an AWOL status
* on 15 January 1997 to 3 February 1997, absent himself from his unit in an AWOL status
* on 28 August 1996 and 3 September 1996, wrongfully use cocaine, a controlled substance
* between 17 September 1996 and 17 October 1996, wrongfully use marijuana, a controlled substance
* between 9 November 1996 and 9 December 1996, wrongfully use marijuana, a controlled substance
* between 31 December 1996 and 6 January 1997, wrongfully use cocaine, a controlled substance
* on 6 January 1997 and 15 January 1997, wrongfully possess marijuana, a controlled substance
* on or between 30 September 1996 and 9 October 1996, stealing certain moneys of value of $1300, the property of the Army and Air Force Exchange
* on 2 to 8 October 1996, with intent to defraud, falsely make the signature of another on personal checks
   
   c.  The court sentenced him to forfeiture of all pay and allowances, to be confined for 3 years and to be dishonorably discharged from the service.
   
	d.  On 31 March 1997 the convening authority approved the sentence and except for the dishonorable discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	e.  The applicant’s record is void of the appellate review but General Court-Martial Order Number 106, dated 28 May 1998, shows, in pertinent part, that his sentence was finally affirmed and the dishonorable discharge was ordered duly executed.

	f.  The applicant was discharged on 8 July 1998.  His DD Form 214 shows he was discharged in the rank/grade of Private/E-1 as a result of his general court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, with a dishonorable discharge.  

     g.  He completed 1 year, 8 months and 22 days of creditable active military service with 241 days of lost time.  His DD Form 214 also shows he was awarded or authorized the: 

* National Defense Service Medal
* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16)

4.  By regulation, a soldier 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of honorable service completed prior to a lengthy list of UCMJ violations that resulted in the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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) 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 (General) 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 3-10, section IV, of this chapter, states a soldier 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate, 

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.


ABCMR Record of Proceedings (cont)	 AR20180004334


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