ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  18 September 2019

	DOCKET NUMBER:  AR20180005632


APPLICANT REQUESTS:  an upgrade to his bad conduct discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for the Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Junior High and Senior High School Report

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 at the age of 17 years old he dropped out of high school in the 
11th grade to enter the military.  He went absent without leave (AWOL) unintentionally, 
due to a court-martial.  After his discharge, he went back to school and received his 
diploma at the age of 21.  In 2017, he went to file for his VA benefits and realized he 
was ineligible, due to his character of service listed on his DD Form 214.

3.  The applicant provides:

     a.  A copy of his DD Form 214, which captures his dates of service from 1 April 1980 
to 1 December 1982.

     b.  A copy of his Junior High and Senior High School report, which shows he 
graduated on 9 September 1985

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

	a.  He enlisted in the regular Army on 1 April 1980.

	b.  He accepted nonjudicial punishment on/for:
*	On 21 April 1981, for failure to be at his appointed place of duty
*	On 23 June 1981, for failure to obey a lawful order
*	On 14 November 1981, for failure to be at his appointed place of duty
*	On 4 January 1982, for failure to be at his appointed place of duty
*	On 12 February 1982, for going AWOL on or about 8 February 1982 and 
remained AWOL until or about 11 February 1982
*	15 July 1982, for failure to be at his appointed place of duty

	c.  On 6 May 1982, he was convicted by Special Court-Martial Order Number 102 for 
one specification of going AWOL on or about 23 February 1982, and did remain so until 
on or about 26 March 1982, and one specification for failing to be at his appointed place 
of duty on 19 February 1982.  His sentence included forfeiture of $367.00 pay for         
6 months, confined at hard labor for 30 days and an issuance of a bad conduct 
discharge.  
   
   d.  On 19 July 1982, the convening authority approved the sentence and the 
forfeiture of pay was deferred until the sentence is ordered into execution.

	e.  The appellate (United States Army Court of Military Review) affirmed the findings 
pursuant to Article 66.

	f.  Special Court-Martial Order Number 161, dated 29 October 1982, states the 
provisions of Article 71(c) having been complied with the sentence will be duly 
executed.

	g.  The applicant was discharged on 12 December 1982.  His DD Form 214 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 2 years,         
4 months and 26 days of net active service this period.  He had lost time from:

*	8 February to 10 February 1982
*	23 February to 26 March 1982
*	26 March to 27 May 1982

h.  He was awarded or authorized the:

*	Army Service Ribbon
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16
*	First Class Qualification Badge with Hand Grenade
*	First Class Qualification Badge Dragon Gunner

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

6.  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.

7.  The Board should 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 relatively short term of honorable service completed prior to 
a pattern of misconduct which included a lengthy period of AWOL, 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 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. The honorable characterization is appropriate when the quality of the 
soldier'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.  A characterization of under honorable conditions may be issued only when 
the reason for the soldier's separation specifically allows such characterization. It will 
not be issued to soldiers upon separation at expiration of their period of enlistment, 
military service obligation, or period for which called or ordered to active duty.

	c.  Paragraph 3-11, of that regulation covers Bad Conduct Discharges and states 
that 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.  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)	 AR20180005632

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