ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 September 2019

	DOCKET NUMBER:  AR20180011048


APPLICANT REQUESTS:  his bad conduct discharge (BCD) be upgraded

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the 
United States)

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.  Although submitted on a DD Form 293, the Army Discharge Review Board lacks 
jurisdiction over this matter, because applicant’s BCD is the result of trial before a 
general court-martial.  This Board is the proper forum.  

3.  The applicant states he is not sure why his DD Form 214 (Certificate of Release or 
Discharge from Active Duty) states that he had excess leave of 403 days.  He was 
discharged by the Army on 11 March 1988 and was released to go home.  He believed 
his term of service was completed.  A year later, he received final discharge that shows 
BCD for 403 days of excess leave.  He is not sure why.  He does not understand and 
would like to have his discharge upgraded.  He had a previous honorable discharge.  

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

     a.  He enlisted in the Regular Army on 10 February 1982, for a period of three years.  
On 19 October 1984 applicant re-enlisted in the RA for a period of three years.  

     b.  On 27 November 1987, he pled guilty before a general court-martial to desertion 
and two violations of lawful regulations related to the prevention of black marketing in 
Korea, specifically failing to disclose information showing continued possession or 
lawful disposition of purchases and wrongful transfer of duty free goods to unauthorized 
persons.  His approved sentence included reduction to the lowest enlisted grade, 
forfeiture of all pay and allowances, confinement for one year (with six months to be 
suspended and remitted unless vacated within one year of the action) and a BCD.  All 
portions of the sentence were ordered executed except for the BCD.

     c.  On 19 February 1988, while serving confinement at the United States Army 
Correctional Activity, Fort Riley, Kansas, applicant was informed of the commander’s 
intent to place him on involuntary excess leave upon completion of his sentence to 
confinement and pending completion of appellate review in his case.  

     d.  The applicant executed an acknowledgement in which he indicated he 
understood his proposed involuntary excess leave and consented to be placed on 
excess leave upon completion of his sentence to confinement.  He also executed a DA 
Form 31 (Request and Authority for Leave) placing him in an involuntary excess leave 
status effective 11 March 1988 and running indefinitely. 

     e.  On 30 November 1988, the United States Army Court of Military Review 
dismissed the offense relating to the disclosure requirement on constitutional grounds.  
It affirmed the remaining findings and the sentence.

     f.  The record is void of the general court-martial order directing execution of the 
BCD.

     g.  On 17 April 1989, applicant was discharged in accordance with Army Regulation 
635-200 (Personnel Separations—Enlisted Personnel), in effect at the time, as a result 
of court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows in:

*	item 12c (Net Active Service this Period), 4 years, 1 month, 5 days
*	item 12d (Total Prior Active Service), 2 years, 8 months, 9 days
*	item 13 (Decorations, Medals, Badges), Army Service Ribbon, Army Good 
Conduct Medal, Overseas Service Ribbon, Army Achievement Medal, 
Noncommissioned Officer Professional Development Ribbon, Army 
Commendation Medal, Meritorious Service Medal
*	item 18 (Remarks), includes the following note, “Excess leave.  Creditable for 
all purposes except pay and allowances.  403 days, 880311 – 890417”
*	item 24 (Character of Service), Bad Conduct
*	item 29 (Dates of Time Lost During this Period), 871013-871015; 871022-
880310

5.  By regulation, a Soldier sentenced by court-martial to a punitive discharge may be 
directed to take excess leave involuntarily pending completion of appellate review.  

6.  By regulation, a Soldier will be given a bad conduct discharge pursuant only to an 
approved sentence of a general or special court-martial.  Appellate review must be 
completed and the affirmed sentence ordered duly executed.

7.  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 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 of a criminal nature, as well as the failure to accept 
responsibility and show remorse for the events leading to his separation, 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.  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) 630-5 (Personnel Absences—Leaves and Passes), in effect at 
the time, set forth the policies and procedures regarding authorized absences.  Excess 
leave is an authorized absence in excess of accrued or advanced leave.  The member 
is not entitled to pay and allowances for the period of such leave.  Paragraph 5-4 states 
that a Soldier sentenced to a punitive discharge may be directed to take excess leave 
involuntarily when such discharge is unsuspended.  The Soldier must be pending 
completion of appellate review and may be required to begin leave on the date that the 
sentence is approved by the general court-martial convening authority or at any time 
after that date.  Confinement must have been served, deferred, or suspended prior to 
the beginning of leave, when included as part of the approved sentence.    
3.  AR 635-200 (Personnel Separations—Enlisted Personnel), in effect at the time, set 
forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 (Bad 
conduct discharge) states a Soldier 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.

4.  AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 
sets forth the basic policy for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor and entitles the recipient to 
benefits provided by law.  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.  A general discharge is a separation from the Army under honorable conditions.  
When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

     c.  An under other than honorable conditions discharge is an administrative 
separation from the Service under conditions other than honorable.  It may be issued 
for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial.

5.  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 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 that Military Department.

6.  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 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.  The 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 on the basis of 
equity, an injustice, or clemency 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)	 AR20180011048

5

1