ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20180008090


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record).

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 he was wrongfully discharged and should have been allowed to finish his time and leave honorably.  Because he did not get along with his superiors, they kicked him out without proper cause.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 17 May 1977.

	b.  He served in Germany from 1 September 1977 to 6 June 1978.  He did not receive normal tour credit.

	c.  He accepted nonjudicial punishment (NJP) under Article 15 on/for:

* 21 July 1977, wrongful possession of one hand rolled cigarette, more or less, of marijuana; his punishment consisted of forfeiture of $150.00 pay
* 30 March 1978, failure to go at the time prescribed to his appointed place of duty and for unlawfully striking another Soldier in the face with his fist; his punishment consisted, in part, of reduction to private/(E-2)
* 25 April 1978, being disorderly in quarters and disobeying a lawful order from his superior noncommissioned officer; his punishment consisted, in part, of reduction to private/(E-1)
	d.  On 7 June 1978, he was convicted by a general court-martial of:

* one specification of wrongfully selling 3.4 grams, more or less of marijuana on or about 17 February 1978
* one specification of wrongfully having in his possession 5 grams, more or less of marijuana on or about 17 February 1978
* one specification of wrongfully having in his possession 125 grams, more or less of marijuana on or about 2 March 1978
* two specifications of attempting to wrongfully sell marijuana on or about 2 March 1978

	e.  The court sentenced him to be confined at hard labor for nine months, forfeiture of all pay and allowances, reduction to private/(E-1), and a bad conduct discharge.

	f.  On 7 July 1978, General Court-Martial Order Number 32, approved the sentence, except for the part of the sentence extending to a bad conduct discharge, ordered the sentence executed by the convening authority.  The record of trial was forwarded to the Judge Advocate General of the Army for review.

	g.  On 8 November 1978, the U.S. Army Court of Military Review approved findings of guilty and the sentence was affirmed.

	h.  On 5 March 1979, General Court-Martial Order Number 11, shows the sentence to a bad conduct discharge had been affirmed.  The provisions of Article 71(c) had been complied with, and the bad conduct discharge would be duly executed.  That portion of the sentence pertaining to confinement at hard labor has been served.

	i.  On 8 March 1979, the applicant was discharged as a private/(E-1).  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions discharge and he was issued a Bad Conduct Discharge Certificate.  He completed 1 year, 4 months, and 23 days of active service with 152 days of lost time.  His DD Form 214 also shows he was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation/directive:

	a.  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.

	b.  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 honorable service completed prior to a pattern of misconduct, which included violent behavior towards others, as well as a lack of demonstrated remorse shown by the applicant for the misconduct, 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 1-9d states an (Honorable Discharge) is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e states a (General Discharge) is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 1-9f states 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, unfitness, homosexuality, or for security reasons.

	d.  Paragraph 1-10 states 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.

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military 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 UCMJ, 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 UCMJ 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 that 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 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.



ABCMR Record of Proceedings (cont)	 AR20180008090


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