ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180011255


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge 

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.  The applicant states it has been over 35 years since he receive a court-martial and 
was discharged from the Army.  He explains that as a part of his plea bargain, his 
lawyer told him to that his discharge would be upgraded in 10-15 years.  

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

	a.  He enlisted in the Regular Army on 28 November 1983.

	b.  On 8 August 1984, he was convicted by a general court-martial for:

*	two specifications of being absent without leave from 21 May 1984 to 
1 June 1984 and 3 August 1984 to 6 November 1984
*	one specification of larceny of U.S. currency valued at $30
*	one specification of larceny of a vehicle valued at $4500

	c.  The court sentenced him to confinement for 20 months, forfeiture of all pay and 
allowances and a dishonorable discharge.

	d.  On 20 December 1984, the convening authority approved the sentence and 
ordered the sentence executed.  The record of the trial was forwarded to The Judge 
Advocate General of the Army for review by a Court of Military Review.

	e.  On 30 September 1985, the U.S. Army Court of Military Review affirmed and 
approved a bad-conduct discharge, confinement for 19 months and forfeiture of $397 
pay for 20 months.  The appellant also granted an additional 15-day credit against his 
sentence to confinement.  

	f.  Headquarters, United States Army Correctional Activity, Fort Riley, Kansas, 
General Court-Martial Order Number 117 dated 6 February 1986, shows that after 
completion of all required post-trial and appellate reviews, the convening authority 
ordered forfeiture of $397 pay per month for 20 months and the bad conduct discharge 
executed.

	g.  On 19 February 1986, the applicant was discharged from the Army under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
Chapter 3 with a bad conduct characterization of service.  His DD Form 214 shows he 
completed 8 months and 22 days of net active service.

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

5.  By regulation, (AR 635-200), 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.  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.

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 offenses 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) 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 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 record is satisfactory but 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 administrative separation from the service 
under conditions other than honorable.

	d.  Chapter 3 of this regulation states that 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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180011255

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