ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180011832


APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade of his bad conduct discharge.

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)
* Record of Proceedings
* Army Board for Correction of Military Records Decision Memorandum

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050002755 on 11 October 2005.

2.  The applicant states he received a bad conduct discharge and is requesting an upgrade.  He was a very good Soldier, but due to the racism of an officer, he made a mistake which he now regrets and wishes to correct.  He was a good Soldier but he has neglected until now to correct the injustice to his service record.

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

	a.  He enlisted in the Regular Army (RA) on 28 September 1982.  He immediately reenlisted in the RA on 4 September 1984.

	b.  The applicant was tried by General Court-Martial and found guilty of one specification of intent to commit rape, three specifications of indecent assault upon a female Soldier who was not his wife, one specification of assault on a female Soldier.  On 20 March 1989, the sentence of bad conduct discharge and reduction to the grade of private (PVT)/E-1 was adjudged.  

	c.  On 19 April 1989, the convening authority approved the sentence and except for the bad conduct discharge ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

	d.  As contained in the Staff Judge Advocate’s Review and Recommendation, dated 23 August 1989, pursuant to Article 61(b), Uniform Code of Military Justice and Rules of Court-Martial 1110(a), the applicant withdrew the right to appellate review.  Matters requiring comment are the promulgating order incorrectly reflected a plea and finding of guilty for Charge III and its specification.  The accused changed his original plea of guilty to not guilty.  Charge III and its specification were dismissed on motion of the trial counsel.  The action should correct the promulgating order to reflect the actual plea to and disposition of the charge.  No sentence relief is required since there was no prejudice to the accused as to findings or sentence.  

	e.  On 23 August 1989, General Court-Martial Order Number 53 approved the sentenced and ordered the bad conduct discharge executed.  

	f.  On 5 October 1989, he was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3 (DD Form 259A (Bad Conduct Discharge)), and issued a bad conduct discharge.  His DD Form 214 shows he completed 7 years and 8 days of active service.  It also shows he was awarded or was authorized the:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar
* Noncommissioned Officer Professional Development Ribbon (Primary Level)
* Army Achievement Medal (1st Oak Leaf Cluster)
* Good Conduct Medal
* Overseas Service Ribbon

	g.  On 11 October 2005, the ABCMR denied his application.  The Board determined there was no existence of a probable error injustice.  

	h.  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.

4.  By regulation, 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.

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.

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 serious, criminal nature of the offenses which led to the applicant’s separation, 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.

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 for the period ending 5 October 1989:  “Continuous honorable active service from 28 September 1982 until 3 September 1984.”

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, 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.  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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180011832


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