ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 August 2019

	DOCKET NUMBER:  AR20180008707


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* self-authored statement
* letters from Army Review Boards Agency
* DD Form 214 (Certificate of Release or Discharge From Active Duty)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140007843 on 8 January 2015.

2.  The applicant states he is requesting to have his bad conduct discharge upgraded to a general under honorable conditions, because he had completed his punishment.

	a.  His family was poor, but taught him right from wrong and he attempted to live his life the same.  He dropped out of high school to support his baby.  When he was of age, he joined the Army and did very well for himself.  He was promoted to Specialist (SPC)/E-4, after 15 months in the service.

	b.  Shortly after he got to his first duty assignment, he gave into peer pressure and began drinking.  Before he knew it, he was drinking every night.  He then received a bad conduct discharge.  He knows he made bad decisions along the way and asks to be given a second change and to be forgiven.  He has made amends to the people that he had hurt and they have forgiven him.  He feels that he is still being punished for his crime and does not want to die with the stigma of the bad conduct discharge.

	c.  After his discharge from the service, he held numerous dead end jobs.  He was so devastated by his character of service, that he started to consume alcohol and drugs to cope with the pain of his discharge, which he thought was harsh.  He finally turned to Narcotics Anonymous in 1995, and has been clean since.  He has also assisted others to get away from drugs and live productive lives.  In order to do this, he turned to religion and had been a trustee at his church for 19 years.  The church turned his life around.  

	d.  When he was spoken to about the larceny, he admitted to his actions and offered restitution, but was never given a chance.  He stayed around for his trial, but was not given good legal support.  He only spoke to his legal counsel once before the trial, who told him that he would be able to get the judge to give the applicant a 60 day sentence and a general discharge.  He was given a speedy trial, but was never allowed to explain the situation in his life at the time.  If the Board deems to upgrade his discharge, he then can be proud on Memorial and Veteran’s Day and would not have to live with the pain and sadness any more.

3.  The applicant provides:

   a.  A letter from Army Review Boards Agency (ARBA) dated, 24 March 2014, which informed the applicant that his application was received; however, the ADRB did not have the authority to process his application, because it had been over 15 years since his discharge date.  It also informed him that he may appeal his discharge to the Army Board for Corrections of Military Records.
   
   b.  A letter from the ARBA dated, 9 May 2014, which informed him that the ARBA reviews cases in the order in which it is received.  

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

	a.  He enlisted in the Regular Army on 5 June 1975.

	b.  He accepted non-judicial punishment on 8 November 1977 for willfully disobeying a lawful order.  His punishment included reduction to the grade of private first class 
(PFC)/E-3.

	c.  Special Court-Martial Order Number 40 dated, 10 August 1978, the applicant was convicted of one specification of theft of currency from another enlisted Soldier.  The applicant was sentenced to reduction to the lowest enlisted grade of Private (PVT)/E-1, forfeiture of $150 per month for 3 months, confinement to hard labor for 3 months and to be discharged from the service with a bad conduct discharge.  The sentence was adjudged on 20 July 1978.

	d.  On 10 August 1978, the convening authority approved the sentence which provides for a bad conduct discharge, confinement at hard labor for 1 month, forfeiture of $150 per month for 1 month and reduction in grade to PVT/E-1.  Pending completion of the appellate review the applicant was confined.

	e.  On 13 February 1979, the appellate review found the approved findings of guilty and the sentence to be correct in law and fact, should be approved such findings of guilty and the sentence was affirmed.

	f.  On 7 May 1979, the applicant was notified of the decision of the Court of Military Review and he acknowledged it.

	g.  Special Court-Martial Order Number 455 dated, 1 September 1982, the bad conduct discharge sentence was promulgated, had been complied with and the sentence was duly executed.

	h.  He was discharged from active duty on 3 November 1982 with a bad conduct character of service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2 (Bad Conduct Discharge.  His DD Form 214 shows he completed 7 years, 4 months and 5 days of net active service with 25 days of lost time.

5.  The applicant applied to the Army Discharge Review Board in Docket Number 
AD87-04067 on 22 April 1988, his application for an upgrade of his discharge was denied.

6.  The applicant applied to the Army Board for Corrections of Military Records in Docket Number AR20140007843 on 8 January 2015, his application for an upgrade of his discharge was denied.

7.  By regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

8.  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 offense involving the stealing of another Soldier’s personal property, 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.  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.  Issuance of an honorable discharge certificate 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.  Where a member has served faithfully and performed to the best of his ability and there is not derogatory information in his military records, he should be furnished an honorable discharge certificate.


	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.  The recipient of a general discharge is normally a member whose military records and performance is satisfactory.  The member may have had frequent nonjudicial punishments but not for serious infractions.  

	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 homosexuality, for security reasons, or for the good of the service issuance of an under other than honorable conditions discharge.

	d.  Paragraph 11-2 (Bad Conduct Discharge), of that regulation 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.

2.  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.

3.  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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008707


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