IN THE CASE OF:  

BOARD DATE:  20 December 2019

DOCKET NUMBER:  AR20180006677


APPLICANT REQUESTS:  The applicant requests an upgrade of his bad conduct 
discharge by reason of court-martial.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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:

	a.  He was dishonorably discharged from the Army by a court-martial.  He was never 
given the time or chance to appeal this charge at the time.  He was made an example 
out of.  Although he was found not guilty of the original charges, he was given another 
charge just to punish him.  The person that he was charged for was given complete 
immunity to testify for the first charge.  

	b.  He was accused of raping a fellow Soldier and was found not guilty on that 
charge but found guilty of sodomy because he let a woman go down on him.  She 
walked away free.  He was dishonorably discharged and lost all his benefits.  

	c.  At the time of his sentencing, he was told by the conducting judge that if he 
stayed out of trouble and educated himself, he could have his discharge upgraded so 
he could get his benefits.  He has never been arrested and has a college degree.  He 
also works a full-time job.  

3.  On 12 October 1989, he enlisted in the Regular Army for a period of 4 years.  He 
completed training requirements and was assigned to Korea on 11 July 1990.      
4.  A review of his service record shows:  

	a.  On 17 January 1991, he was reduced to pay grade E-2.
	
	b.  On 20 March 1992, he was tried and convicted by a general court-martial.  He 
pleaded not guilty and was found not guilty of raping Specialist TAO, a woman not his 
wife.  He pleaded not guilty and was found guilty of committing sodomy with Private 
First Class CRS (a female Soldier).  His sentence consisted of reduction to pay grade 
E-1 and to be discharged from the service with a bad-conduct discharge.

	c.  On 22 May 1992, the general court-martial convening authority approved the 
sentence and, except for the part of the sentence extending to a bad conduct discharge,  
ordered it executed.  He was ordered on involuntary excess leave pending appellate 
review of his court-martial conviction and returned to the United States.      

	d.  On 30 April 1993, the U.S. Army Court of Military Review affirmed the findings of 
guilty and sentence.    

	e.  On 27 March 1995, General Court-Martial Order Number 38 announced the 
completion of appellate review and directed the execution of the applicant’s bad conduct 
discharge.    

5.  On 10 May 1995, the applicant was discharged by reason of court-martial.  His 
DD Form 214 shows a “bad conduct” character of service.  His four year contractual 
obligation was involuntarily extended for court-martial purposes resulting in him  
completing 5 years, 6 months, and 10 days of net active service with 1,071 days on 
excess leave.  He was awarded or authorized the: 

*	National Defense Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon
*	Marksmanship Qualification Badge with M-16 Rifle Bar

6.  By law, court-martial convictions stand as adjudged or modified by appeal through 
the judicial process.  The Board is not empowered to set aside a conviction, but is only 
empowered to change the severity of the sentence imposed in the court-martial 
process.

7.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.         


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 
Uniformed Code of Military Justice (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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge was a separation with honor.  Issuance of an honorable 
discharge was conditioned upon proper military behavior and proficient duty 
performance.  

	b.  A general discharge is a separation from the Army under honorable conditions.  It 
was issued to a member whose military record is satisfactory but not sufficiently 
meritorious to warrant an honorable discharge.

	c.  A bad conduct discharge was to be given only pursuant to an approved sentence 
of a general or special court-martial, following the completion of an appellate review, 
and after such affirmed sentence had been 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.  

	a.  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.  

	b.  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)	 AR20180006677


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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