ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180004841


APPLICANT REQUESTS:  an upgrade of 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 his discharge was justified and not in error.  He is now requesting an upgrade for the following reasons:

* he reported to work on time
* completed all assigned tasks
* had outstanding evaluations
* earned an expert marksmanship qualification with his individual weapon
* he was in the process of receiving advancement to private/(E-2)
* he worked for the installation command sergeant major
* it has been 38 years since the incident
* he has held three jobs (one for 27 years and the other two for 4 years each)

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 15 February 1980.

	b.  On 10 October 1980, he was convicted by special court-martial of one specification of larceny.  The court sentenced him to confinement at hard labor for 5 months, forfeiture of $300.00 per month for 5 months, reduction to the grade of E-1, and a bad conduct discharge.


	c.  Special Court-Martial Order Number 102, dated 4 December 1980 shows the convening authority approved the sentence.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of appellate review, the applicant was ordered confined in the United States Disciplinary Barracks (USDB), Fort Leavenworth, KS or elsewhere as competent authorities may direct.

	d.  Special Court-Martial Order Number 187, dated 22 May 1981, shows the sentence had been affirmed pursuant to Article 66, the provisions of Article 71 (c) having been complied with, and the sentence would be duly executed.  That portion of sentence pertaining to confinement has been served. 

	e.  On 7 July 1981, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) he was discharged in the rank/grade of private/E-1 as a result of his special court martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 11, paragraph 11-2.  His DD Form 214 shows he completed 1 year and 1 month of net active service with 155 days of lost time.  It also shows he was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M16).

	f.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations.

4.  By regulation (AR 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 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 offense of a criminal nature against a fellow junior service member, as well as the failure to 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 Separations), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states that 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 that 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 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states 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.  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 UCMJ, 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 UCMJ 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.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180004841


3


1