ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20180009983 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to an honorable or general, under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) * honorable discharge certificate dated 25 February 1982 * honorable discharge certificate dated 3 February 1985 * DD Form 214 (Certificate of Release or Discharge) 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 is requesting to have his discharge upgraded because it was inequitable due to the fact that it was based on one isolated incident in his 6 years and 11 months of service with no other adverse actions. He was granted two honorable discharges; one February 25, 1982 and another February 3, 1985. He received ribbons and medals to include a good conduct. b. He would like the Board to know that he has regretted his actions ever since the incident occurred. It has brought disrespect to himself and the U.S. Army, which he has been dealing with every day and continues to do so for the rest of his life. He feels that an upgrade is necessary for some inner peace and respect for himself and his children. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 11 July 1979. b. He reenlisted in the RA on 26 February 1982. c. He served in Korea from 6 April 1984 to 5 July 1985. d. DA Form 1695 (Oath of Extension of Enlistment), on 28 February 1984, the applicant extended his enlistment for 2 months to meet service remaining requirement for overseas assignment. His new expiration term of service became 25 April 1985. e. He reenlisted in the RA on 4 February 1985. f. Special Court-Martial Order Number 26, dated 12 June 1985, the applicant was convicted of 1 specification of purchasing with the intent to make a profit, 1 specification of wrongful transfer of merchandise to persons not authorized to have duty free goods, and 1 specification of failure to show proper disposition of goods. The sentence was fined $600, reduction to the grade of private (PVT) / E-1 and discharged with a bad conduct discharge. The sentence was adjudged on 20 May 1985. The convening authority approved the sentence except for the bad conduct discharge to be executed. g. Special Court-Martial Order Number 16 dated 30 May 1986, was affirmed and the bad conduct discharged to be executed. h. He was discharged on 2 September 1986 under the provisions of section IV (Dishonorable and Bad Conduct Discharge), Chapter 3 (character of Service / Description of Separation), with a bad conduct characterization of service in the grade of PVT/E-1. His DD Form 214 shows he completed 7 years, 1 month and 22 days of active service. 4. There is no evidence the applicant applied to the ADRB within its 15-year statute. 5. 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. 6. 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. He was remorseful with his application; however, based upon the offense of a criminal nature, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 11 July 1979 until 3 February 1985.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service is 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 that a general discharge is a separation from the Army under honorable conditions When authorized it is issued to a member whose military records is satisfactory but not sufficiently meritorious to warrant ah honorable discharge. c. Paragraph 3-7c (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, fraudulent entry, homosexuality, security reasons, or for the good of the service issuance of an under other than honorable conditions discharge. d. Chapter 3 (Dishonorable and 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. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from 19790711 to 19850203”. 4. 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. 5. 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) AR20180009983 4 1