ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20180004430


APPLICANT REQUESTS:  an upgrade to his bad conduct 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 the facts were not correct in his case.  He was not provided with a lawyer to check into his case.  He was put in a holding cell, straight to court and then straight to jail.  He really didn’t know what to do about it or who to turn to for help.  He is tired of this over his head.  

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

	a.  He enlisted in the Regular Army on 7 January 1994.  He reenlisted on 26 November 1996.  

	b.  On 16 April 1998, he was convicted by special court martial of one specification of conspiring to steal two televisions (military property), one specification of larceny of two televisions, and one specification of unlawfully entering the warfare simulation center.  The court sentenced him to reduction to E-1, forfeiture of $617.00 per month for 4 months, confinement for 4 months, and a bad-conduct discharge.  

	c.  On 19 June 6 1988, the convening authority approved only so much of the sentence as provided for reduction to E-1, forfeiture of $617.00 per month for 4 months, confinement for 100 days, and a bad-conduct discharge, and except for the bad conduct discharge, he ordered the sentence executed.  He also ordered the record of trial forwarded to the Judge Advocate General of the Army for appellate review. 

	d.  Special Court-Martial Order Number 57, dated 27 April 1999, shows the sentence had been affirmed and the bad conduct discharge would be executed. 

	e.  On 18 November 1999, the applicant was discharged.  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), chapter 3, section IV, bad conduct discharge, JJD (court martial, other).  His characterization is bad conduct.  He completed 5 years, 7 months and 17 days of active service.  He had lost time from 16 April 1998 to 9 July 1998, 85 days.  It also shows he was awarded or authorized;  

* Army Achievement Medal
* National Defense Service Medal
* Army Service Ribbon
* Parachutist Badge

4.  By regulation 635-200, 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.  

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 multiple offenses of a criminal nature being the cause for the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

However, the Board noted that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be made to more accurately reflect his military service.


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 7 January 1994 until 25 November 1996.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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, provides 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 but not sufficiently meritorious to warrant an honorable discharge.  

	c.  Paragraph 3-7c (Under Other than Honorable Condition) 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 in the following circumstances:  

* when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army
* when the reason for separation is based upon one or-more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army.  Examples of factors that may be considered include the following:  use of force or violence to produce serious bodily injury or death, abuse of a position of trust, or disregard by a superior of customary superior-subordinate relationships
* acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army  
* deliberate acts or omissions that seriously endanger the health and safety of other persons
* an other than honorable conditions discharge will be directed only by one of the following:  a commander exercising general court-martial jurisdiction, or a general officer in command who has a judge advocate or legal advisor available to his or her command
	d.  Paragraph 3-11, 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.  

3.  Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

4.  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)	 AR20180004430


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