ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 September 2019

	DOCKET NUMBER:  AR20180006032


APPLICANT REQUESTS: upgrade of his bad conduct discharge to general under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the Unites States)

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, in effect,

	a.  He understands what he did was completely wrong and know it now.  He states he realized he made a bad decision that day and regrets what he did every day.  The applicant expresses sorrow for his actions and ask the Board to consider his service and accomplishments prior to the incident and since his discharge 

	b.  He states he feels that he deserves to be proud of his military service and wishes to be able to participate in Veteran organizations like American Veterans (AMVETS), Veterans of Foreign Wars (VFW), American Legion and Veteran organizations with his employer, John Deere.  Lastly, the applicant states under "current Standards", he shouldn't have been given the bad conduct discharge.

3.  The applicant provides:

* Two (2) Army Achievement Medals
* Honorable Discharge (for first enlistment)
* Overseas Service Ribbon
* Drivers Badge
* Expert Marksmanship Qualification Badge
4.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 10 January 1985 and had continuous honorable service 27 August 1987.  He was assigned to Fort Carson, CO.

	b.  On 28 January 1988, the applicant was found guilty by a general court-martial in accordance with General Court-Martial Order Number 24, dated 15 March 1988, issued by Headquarters, 4th Infantry Division (Mechanized) and Fort Carson, CO, of:

* one specification of wrongfully distributing marijuana 
* one specification of wrongfully possessing marijuana

   c.  The court sentenced him to reduction to private/E-1, confinement for a period of two (2) years, forfeiture of all pay and allowances, and a bad conduct discharge. 

	d.  On 15 March 1988, the convening authority approved the sentence, except for the part of the sentence extending a bad conduct discharge, the sentence was executed.  Execution of the part of the sentence adjudging confinement in excess of 
14 months was suspended for 14 months, unless sooner vacated, at which time, the suspended part of the sentence was to be remitted without further action.  

	e.  On 30 November 1988, the record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.  The Court found no errors and affirmed the findings of guilty and sentencing.

	f.  General Court-Martial Order Number 289, dated 15 August 1989, issued by the United States Disciplinary Barracks, US Army Combined Arms Center and Fort Leavenworth, KS, ordered the applicant’s sentence was affirmed and the bad conduct discharge to be executed.

	g.  Orders 143-16, dated 24 August 1989, discharged the applicant from active duty on 8 September 1989.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation (AR) 
635-200 (Personnel Separations-Enlisted Personnel), paragraph 3-11, as a result of court-martial, in the rank/grade of private/E-1, with a bad conduct discharge.  He completed 3 years, 5 months, and 29 days of creditable active military service with lost time from 28 January 1988 to 27 March 1989.  He was awarded or authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Driver Badge
* Expert Marksmanship Qualification Badge with Pistol Bar
* 1st Class Marksmanship Qualification Badge with Grenade Bar

5.  By regulation (AR 635-200), 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.

6.  The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was warranted.  In reaching its determination, the Board did consider the applicant’s submission in accordance with the FY2018 DOD published equity, injustice, or clemency determination guidance.  To remove any possible stigma felt by the applicant based upon receiving a punitive discharge, the Board determined to grant some clemency standpoint by recommending an upgrade of the characterization of service to Under Other Than Honorable Conditions discharge. 

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 that the evidence presented was 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 issuing him a new DD Form 214 to show he was discharged with an Under Other Than Honorable Conditions character of service, effective 8 September 1989.

2.  The Board further determined that the evidence presented was 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 his discharge to general.  
	 
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.  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.

3.  AR 635-200, in effect at the time, governs the separation of enlisted personnel.

	a.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states 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 3-11 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

4.  Army Regulations 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  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.

ABCMR Record of Proceedings (cont)	 AR20180006032


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