IN THE CASE OF:  

BOARD DATE:  20 December 2019

DOCKET NUMBER:  AR20180005054


APPLICANT REQUESTS:  The applicant requests upgrade of his bad conduct 
discharge to a general discharge under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

*	DD Form 293 (Application for the Army Discharge Review Board (ADRB) in lieu 
of the DD Form 149 (Application for Correction of Military Records)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (U.S. Code), section 1552 (b) (Correction of Military 
Records:  Claims Incident Thereto).  However, the Army Board for Correction of Military 
Records (ABCMR) 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, "It's time I did my time," and, in effect, indicates he has not 
been involved in any misconduct since his discharge.  In addition, he notes he is 
starting to have shoulder problems, which he claims were initially incurred while in basic 
combat training.  He has been out of the Army for over 26 years and never thought 
about getting an upgraded character of service; this was because a Judge Advocate 
General's Corps officer told him his bad conduct discharge would later be upgraded to 
something less than honorable.  Now that he has been married for more than 29 years, 
his wife is wondering about the Veterans' benefits for which he may be eligible.

3.  The applicant's service records show:

	a.  On 21 November 1979, the applicant enlisted into the Regular Army for a 3-year 
term.  After completing initial training, the applicant was assigned to Fort Carson, CO; 
he arrived on 1 May 1980.  

	b.  On 23 October 1980, the applicant accepted nonjudicial punishment (NJP) under 
Article 15, Uniform Code of Military Justice (UCMJ).

		(1)  The applicant was charged with the following:

*	Being absent without leave (AWOL)) from 1115 to 1515 hours on 
1 October 1980
*	Willfully disobeying a captain's lawful order to report to his office 
*	Willfully disobeying a sergeant first class's order to return to the orderly 
room
*	Unlawfully resisting apprehension by the military police
*	Unlawfully assaulting a military policeman, who was executing military 
police duties, by hitting the military policeman in the shoulder with a closed 
fist and in the body with a trash can lid
*	Being disorderly at Fort Carson

		(2)  Punishment included reduction to private (PV1)/E-1, forfeiture of $100 per 
month for 2 months, extra duty for 45 days, and restriction for 45 days (suspended).

	c.  On 6 January 1981, consistent with his pleas, a special court-martial empowered 
to adjudge a bad conduct discharge convicted the applicant of UCMJ violations.

		(1)  The court found the applicant guilty of the following:

*	Conspiring with two other Soldiers to steal a stereo receiver, turntable, 
clock radio, and a television (total value of about $831) from a fellow 
Soldier (Private (PVT)  R__), and to facilitate the larceny, the applicant 
provided the two Soldiers with PVT R__'s room key
*	Willfully disobeying Second Lieutenant (2LT) H__'s order to remain in the 
office, and willfully disobeying 2LT R__'s order to return to the battalion
*	Using disrespectful language toward a first lieutenant by saying, "No, I'm 
tired of this s__, I'm ready to fight you now!"
*	Attempting to steal two automobile tires (total value about $80) belonging 
to a fellow Soldier

		(2)  The court sentenced him to 5 months' confinement and a bad conduct 
discharge.  Orders, dated 21 January 1981, transferred the applicant to the U.S. 
Disciplinary Barracks (USDB) at Fort Leavenworth, KS.

		(3)  On 3 March 1981, the court-martial convening authority approved the 
sentence, but suspended 4 out of the 5 months' confinement for a period of 6 months.  
Pending completion of the appellate review, the convening authority ordered the 
applicant to be confined at the USDB, Fort Leavenworth.

	d.  Effective 26 April 1981, the applicant was reassigned to a unit at Fort Knox, KY, 
pending the outcome of the appellate review.  

	e.  Between July and October 1981, the applicant accepted NJP for UCMJ violations 
on three occasions:

*	21 July 1981 – disorderly conduct at the Enlisted Persons' Club on Fort Knox; 
the applicant filed an appeal, but it was denied
*	10 August 1981 – failure to report to his appointed place of duty at the time 
prescribed; the punishment was suspended for 60 days, but the suspension 
was vacated, effective 18 August 1981, due to a violation of Article 86, UCMJ
*	1 October 1981 – disorderly conduct at the Enlisted Persons' Club on Fort 
Knox

	f.  On 20 November 1981, the U.S. Army Court of Military Review affirmed both the 
trial court's findings of guilt and the applicant's sentence.

	g.  A special court-martial order, dated 30 March 1982, verified the completion of the 
appellate review and ordered the execution of the applicant's bad conduct discharge; on 
14 April 1982, the applicant was discharged accordingly.  His DD Form 214 (Certificate 
of Release or Discharge from Active Duty) showed he completed 2 years, 1 month, and 
11 days of his 3-year enlistment contract, with lost time from 11 December 1980 to 
14 April 1981.  He was awarded or authorized the Army Service Ribbon and two 
marksmanship qualification badges.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade 
discharges.  Each case is decided on its own merits when an applicant submits an 
application to either the ADRB or the ABCMR requesting change in discharge.  
Changes may be warranted if the ABCMR determines that the characterization of 
service or the reason for discharge or both were improper or inequitable.  The Defense 
Discharge Review Standards specifically state no factors should be established that 
require automatic change or denial of a change in discharge. 

5.  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 ABCMR 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.  The Board can consider the applicant’s petition, his arguments 
and assertions, and his service record in accordance with the published equity, 
injustice, or clemency guidance.

BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant's statement, his record of 
service, the frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors and the applicant provided no evidence of post-service achievements 
or letters of reference in support of a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XX	:XX	:XX	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, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure 
to timely file within the 3-year statute of limitations if the ABCMR determines it would be 
in the interest of justice to do so.  With respect to 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 actions taken by reviewing authorities under the UCMJ or action on the sentence 
of a court-martial for purposes of clemency.  The Secretary of the Army shall make such 
corrections by acting through boards of civilians within the executive part of the Army.

2.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 
forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a stated an honorable discharge was separation with honor.  
Issuance of an honorable discharge certificate was appropriate when the quality of the 
Soldier's service generally met the standards of acceptable conduct and performance of 
duty, or was otherwise so meritorious that any other characterization would clearly be 
inappropriate.  Where there were infractions of discipline, commanders were to consider 
the extent thereof, as well as the seriousness of the offense.  An honorable discharge 
could be furnished when disqualifying entries in the Soldier's military record was 
outweighed by subsequent honest and faithful service over a greater period of time.  It 
was the pattern of behavior, and not the isolated instance, which commanders should 
consider as the governing factor.

	b.  Paragraph 3-7b stated a general discharge was a separation from the Army 
under honorable conditions.  When authorized, it was issued to a Soldier whose military 
record was satisfactory but not sufficiently meritorious to warrant an honorable 
discharge.

	c.  Paragraph 3-11 (Bad Conduct Discharge).  A Soldier were given a bad conduct 
discharge pursuant only to an approved sentence of a general or special court-martial.
The appellate review had to have been completed and the affirmed sentence ordered 
duly executed.  

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 on the basis of 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)	 AR20180005054


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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