ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 October 2019

	DOCKET NUMBER:  AR20180012377


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions 
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, in effect he was having marital problems at the time of his 
court-martial and he does not think he got a fair trial.  He was charged with receiving 
stolen property, which he did not know was stolen.  He does not really know what he 
was charged for and believes that his lawyer who represented him did not help him.  
Prior to the incident that led to his misconduct, he reenlisted and had never been in any 
type of trouble.

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

   a.	The applicant enlisted in the Regular Army on 14 January 1980.  

   b.	Special Court-Martial Order Number 267, dated 22 December 1981 reflects, he 
was convicted by a special court-martial of one specification of wrongfully stealing a 
black and white television, the property of the Military Rent-All.  The court sentenced 
him to forfeiture of $367.00 per month for two months, confined at hard labor for two 
months, to be discharged from the service with a bad conduct discharge, and to be 
reduced to private/E-1.  The sentence was adjudged on 19 November 1981.

   c.	On 22 December 1981, the convening authority approved only so much of the 
sentence as provides for bad conduct discharge, forfeiture of $367.00 pay per month for 
two months, confinement t hard labor for 45 days, and reduction to the grade of 
private/E-1 was approved.  The record of trial was forwarded to the Judge Advocate 
General of the Army for appellate review.

   d.	On 24 February 1982, the United States Army Court of Military Review affirmed 
the findings of guilty and the sentence.

   e.	Special Court-Martial Order Number 129, issued by the Headquarters, United 
States Army Armor Center and Fort Knox, KY, dated 1 June 1982, shows that after 
completion of all required post-trial and appellate reviews, the convening authority 
ordered the sentence be duly executed.  Further noting that the portion of the sentence 
pertaining to confinement had been served.

   f.	The applicant was discharged on 1 July 1982.  His DD Form 214 shows he was 
discharged under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10, administrative discharge conduct triable 
by court-martial, with a characterization of service as under other than honorable 
conditions.  He completed 2 years, 4 months, and 11 days of active service and had lost 
time from 20 August 1981 to 21 August 1981 and from 19 November 1981 to 23 
December 1981.  

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

5.  Army Regulation 635-200 states, a member who has committed an offense for which 
the authorized punishment includes a punitive discharge may submit a request for 
discharge in lieu of trial by court-martial.  The request may be submitted at any time 
after charges have been preferred and must include the individual's admission of guilt.  
Although an honorable or general discharge is authorized, a discharge under other than 
honorable conditions is normally considered appropriate.

6.  The Board should consider the applicant's submissions in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was 
not warranted.  The Board did consider the applicant's submissions in accordance with 
the published equity, injustice, or clemency determination guidance.  Board members 
noticed that the charges were in fact presented to him and he acknowledged those 
charges.  He pleaded guilty and he was found guilty.   He was convicted by a special 
court-martial and the court sentenced him to a BCD.  The appellate review as 
conducted and he was discharged accordingly.  Board members felt the 
characterization was appropriate based upon the criminal nature 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the 
basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that 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.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 
committed an offense or offenses for which the authorized punishment includes a punitive 
discharge may, submit a request for discharge for the good of the service in lieu of trial by 
court-martial.  The request may be submitted at any time after charges have been 
preferred and must include the individual's admission of guilt.  Although an honorable or 
general discharge is authorized, a discharge under other than honorable conditions is 
normally considered appropriate.

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 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.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180012377

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