ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE: 15 August 2019 

	DOCKET NUMBER:  AR20180011247


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* 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 was court martial for disobeying a lawful order.  He was not given his new orders and he stayed with his unit.  He do not understand why he was the only one court-martialed, there was eight of them that did not receive orders and did not report to the next duty station.  He served honorably from 1987 to 1991, and he did not get into any type of trouble before the incident that led to his discharge. He was a respectable and productive Solider.  He believed the military unjustly court martialed him for an error made by his command.

3.  The applicant provides his DD Form 214 which shows his service from 13 May 1987 to 17 October 1991.  

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

	a.  Having had prior service in the Army Reserve Delay Entry Enlistment Program, he enlisted in the Regular Army on 13 May 1987.  He was assigned to Bravo Company, 16th Signal Battalion, Fort Hood, TX on 29 October 1987.  

     b.  On 25 April 1990, he was convicted by a general court martial for one specification of without authority, absenting himself from his unit from 8 July 1989 to    10 January 1990, one specification of stealing currency, of a value of $3000.00 the property of the government from 8 July 1989 to 10 January 1990.  The court sentenced him to reduction to the grade of Private/E-1, confinement for 30 days, and a bad-conduct discharge.  The sentence was adjudged on 25 April 1990. The sentence was approved, and except for that part of the sentence extending to a Bad Conduct Discharge, will be executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	c.  The applicant was placed on indefinite involuntary excess leave pending completion of the appellate review.  

	d.  Headquarters III Corps and Fort Hood, TX, Orders 1-100-3, dated 21 June 1990 assigned the applicant to the Personnel Control Facility (PCF), Fort Knox, KY on         25 June 1990.  

	e.  On 26 May 1991, the appellate rendered a decision that Appellant's adjudged sentence of a bad-conduct discharge, confinement for 30 days and reduction to the grade of Private E-l was approved by the convening authority.  Appellant received military pay the entire time he was absent without leave (AWOL).  Appellant was charged with AWOL and larceny of his military pay from 8 July 1989 to 10 January 1990.  At trial, the military judge found the appellant not guilty of AWOL from 8 July through 1 October 1989.  No such adjustment was made by the military judge to the larceny charge, and there was no objection at trial.  They held the findings of guilty of charge I and its specification and the sentence was approved and affirmed by the convening authority correct in law and fact.

	f.  General Court-Martial Order, 86 dated 24 September 1991, only so much of the findings of guilty of the specification of charge II as provided that the appellant did, from 2 October 1989 to 10 January 1 990, steal Government currency, of a value of about $3000.00, the property of the Government.  The finding of guilty of Charge I and its specification and the sentence are affirmed, the remaining findings of guilty and the sentence to a bad conduct discharge, confinement for 30 days and reduction to E-l, adjudged on 25 April 1990, as promulgated in General Court-Martial Order
Number 35, dated 12 June 1990, finally affirmed.

	g.  The applicant was discharged on 17 October 1991.  His DD Form 214 shows he was discharged in the grade of Private/E-1 as a result of his general court-martial conviction, in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, with a bad conduct discharge.  He completed 4 years,  1 month and 2 days of net active service this period, with lost time from 25 April 1990 to 17 May 1990.  It also shows he was awarded or authorized the:  Army Service Ribbon, Expert Marksmanship Badge Grenade and the Marksman Marksmanship Badge Rifle, M-16.

5.  There is no evidence the applicant has applied to the Army Discharge Review Board or review of his discharge within that board's 15-year statute of limitations.

6.  By regulation, AR 635-200, chapter 3-11 (bad conduct discharge) states that 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.  

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 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 large value of the larceny offense which led to the applicant’s 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.  AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.  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, but not sufficiently meritorious to warrant an honorable discharge.  .  By regulation, AR 635-200, chapter 3-11 (bad conduct discharge) states that 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.  

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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)	 AR20180011247


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