ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20180012289


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 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)

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 AC80-03917 on 18 June 1980.

2.  The applicant states he regrets any/all unfortunate circumstances that led to the bad conduct discharge.  Any/all considerations for an upgrade is appreciated.  

3.  Review of the applicant’s service records shows: 

	a.  He enlisted in Regular Army on 23 July 1973.  He held military occupational specialty 76W (Petroleum Supply Specialist).  He served in Germany from 21 November 1973 to on or about 28 July 1974.

	b.  On 8 July 1974, he was convicted by a general court-martial of one specification of robbery, with means of force and violence.  

	c.  The court found him guilty and sentenced him to reduction to pay grade E-1, a forfeiture of all pay and allowance, confinement at hard labor for 1 year, and a bad conduct discharge.  

	d.  On 15 August 1974, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	e.  On 12 November 1974, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence (decision document is unavailable, information taken from previous ABCMR Memorandum of Consideration).

	f.  General Court-Martial Order Number 32, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 20 December 1974, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

	g.  He was discharged from active duty, in the rank of E-1, on 10 February 1975, as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, with a bad conduct discharge.  He completed 11 months and 10 days of active service, with 218 days of time lost.  This form also shows he was awarded/authorized the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

	h.  On 18 June 1980, the ABCMR determined his trial and conviction by general court-martial and his issuance of a bad conduct discharge were in accordance with the laws, regulations, and policies in effect at the time.

4.  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.  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 was remorseful with his application for the events that led to his discharge.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to the serious, criminal nature of the offense which resulted in the applicant’s 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 to amend the decision of the ABCMR set forth in Docket Number AC80-03917 on 18 June 1980.
	 
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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed the policies and procedures pertaining to separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a – an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

	c.  Paragraph 11 – a member would 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. 

2.  Title 10, U.S. Code, section 1552(f), provides that with respect to courts-martial ABCMR action may extend only to the correction of actions taken by reviewing authorities or action on the sentence of a court-martial for purposes of clemency.

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 (BCMRs/NRs) regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs/NRs 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/NRs 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)	 AR20180012289


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