ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 May 2019

	DOCKET NUMBER:  AR20180006811


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge)
* Self-Authored Statement

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 that he was “Horse Playing” in the barracks with other Soldiers at which time he left the room, went to the latrine and then to his room and was not present when another Soldier pulled a knife on another.  His commander questioned him but did not want to listen to his side of the story.  There was another Soldier who was willing to tell the commander that he was not in the room at the time of the incident but the commander did not want to hear what he had to say either.  He was confined for one year and received a bad conduct discharge for something he had not done.

3.  A review of the applicant’s service records shows:

	a.  He enlisted on 16 August 1979 in the Regular Army (RA).

	b.  He accepted nonjudicial punishment on/for:

* 11 March 1980 for failing to go at the time prescribed to his appointed place of duty; his punishment included reduction to private (PVT)/E-1
* 14 January 1981 for failing to obey a lawful order; his punishment included reduction to PVT/E-1

	c.  He was promoted back to private/E-2 on 1 October 1980.
	d.  He was promoted to private first class E-3/PFC on 1 February 1981.

	e.  On 26 February 1981, he was convicted by special court-martial of two specifications of unlawfully striking another Soldier and one specification of communicating a threat to another Soldier.  The court sentenced him to reduction to PVT/E-1, forfeiture of $334 pay per month for 5 months, and to be discharged from the service with a bad conduct discharge.

	f.  Special Court-Martial Order Number 100, dated 12 May 1981, approved the sentence and ordered the sentence executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

	g.  On 20 July 1981, the appellate rendered a decision that states the court having found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, such findings of guilty and the sentence were affirmed.

	h.  Special Court-Martial Order Number 65, dated 5 February 1982, affirmed the sentence and ordered the bad conduct discharge be duly executed.

	i.  The applicant was discharged on 10 March 1982 in the rank/grade of PVT/E-1 as a result of his special court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, with a bad conduct discharge.  He completed 2 years, 2 months, and 22 days of active military service with lost time from 29 June 1981 to 10 March 1982.  His DD Form 214 also shows he was awarded or authorized:

* Expert Marksmanship Qualification Badge with Rifle Bar (M16)
* Expert Marksmanship Qualification Badge with Grenade Bar

4.  By regulation, a member 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.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of service completed prior to a pattern of misconduct, some of which involved serious violent behavior towards other Soldiers, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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, provides for the separation of enlisted personnel:

	a.  Paragraph 1-13a (Honorable Discharge) states that an honorable discharge is a separation with honor.  It is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration of the member’s age, length of service, grade and general aptitude.

	b.  Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions, it is issued to a member whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 1-13c (Under Other Than Honorable Conditions) states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, for security reasons, or for the good of the service.

	d.  Paragraph 11-2 (Bad Conduct Discharge) states a member 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.

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any 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 Uniform Code of Military Justice, 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 Uniform Code of Military Justice 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 the 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 Corrections of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20180006811


4


1