ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20180009255


APPLICANT REQUESTS:  to upgrade his bad conduct discharge to a general, under honorable conditions discharge.  He also requests a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* 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 he wants an upgrade for housing, medical, and education assistance for his family.  He served accordingly and feels he deserves an upgrade based on his service to the Government.  

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

	a.  On 15 July 1980, he enlisted into the Regular Army. 

	b.  On 9 February 1981, he was convicted by special court-martial of two specifications of failing to go to his appointed place of duty, one specification of behave himself with disrespect towards a superior commissioned officer, one specification of disobeying a lawful order from a noncommissioned officer (NCO), one specification of drunk and disorderly conduct, one specification of offering violence against a commissioned officer, and one specification of unlawful assault.  A military judge sentenced him to forfeiture of $334 pay per month for five months, confinement at hard labor for five months, and to be discharged from the Army with a bad conduct discharge.  

	c.  On 26 March 1981, the special court-martial convening authority ordered that only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for three months and forfeiture of $334 pay per month for three months, is approved.  Forfeitures shall apply to pay becoming due on and after the date of this action.  

	d.  On 8 May 1981, special court-martial order number 152, effective 23 April 1981, confirmed the prior verbal order of the Commandant, the unapplied portion of the sentence to forfeiture of $334 pay per month for three months, is suspended for six months.  The accused, having served the period of confinement adjudged 9 February 1981, is restored to duty pending completion of appellate review.  

	e.  On 2 June 1981, he accepted nonjudicial punishment for one specification of altering an official document with intent to deceive.  His punishment included forfeiture of $100 pay per month for one month, and extra duty and restriction for 14 days, suspended for 90 days.  On 25 June 1981, his suspension was vacated for one specification of failing to go to his appointed place of duty, one specification of disrespect to a NCO, and one specification of drunk and disorderly conduct.  

	f.  On 10 July 1981, the U.S. Army Court of Military Review 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 are affirmed.  On 21 July 1981, the applicant was given 30 days to petition the Court of Military Appeals for a grant of review with respect to any matter of law.  

	g.  On 31 August 1981, court-martial charges were preferred against the applicant for one specification of escaping from lawful custody.  The complete facts and circumstances surrounding the preferral against the applicant are unavailable for the Board to review.  

	h.  On 16 October 1981, the sentence to bad conduct discharge, forfeiture of $334 pay per month for three months, and confinement at hard labor for three months was affirmed and ordered duly executed.  


	i.  On 26 October 1981, he was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, chapter 11 (Entry Level Status Performance and Conduct), and issued a bad conduct discharge.  His DD Form 214 reflects that he completed 11 months and 12 days of active service with 115 days of lost time from 9 February 1981 to 22 April 1981 and 23 July 1981 to 8 September 1981.  It also shows that he was awarded or was authorized the: 

* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

	j.  On 17 September 1983, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

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.  The appellate review must be completed and the affirmed sentence 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.

6.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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 post-service character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

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

	b.  Paragraph 3-7b (General Discharge) 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 satisfactory by not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under Other Than Honorable Conditions) 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, fraudulent entry, homosexuality, security reasons, or for the good of service.

	d.  Paragraph 3-11 (DD Form 259A (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.  The appellate review must be completed and the affirmed sentence ordered duly executed.

3.  AR 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, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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 the 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, 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 upgrade service characterization. 

ABCMR Record of Proceedings (cont)	 AR20180009255


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