ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 January 2019

	DOCKET NUMBER:  AR20180012612


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge and a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record).

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 his witness for the court-martial was sent on leave.  Judicial injustice imposed by the prosecutor as a result of witness not appearing at his trial.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 3 August 1982.  He reenlisted in the Regular Army on 19 March 1986.

	b.  On 15 January 1988, he was convicted by special court-martial, for one specification of assault upon a fellow Soldier.  He struck the Soldier in the face with a wine glass thereby intentionally inflicting grievous bodily harm causing multiple lacerations about the face and nose.

	c.  The court sentenced him to a bad conduct discharge, confinement for 6 months, and forfeiture of $447.00 pay per month for 6 months.  On 15 January 1988, he was transported to the U.S. Army Correctional Activity, Fort Riley, KS to serve his sentence.

	d.  Special Court-Martial Order Number 12, dated 26 April 1988 approved the sentence and, except for the part of the sentence extending to a bad conduct discharge, will be executed.  The record of trial was forwarded to the Judge Advocate of III Corps and Fort Hood for appellate review.
	f.  On 28 April 1988, the applicant’s mental status evaluation found he has the mental capacity to understand and participate in the proceedings, mentally responsible, and meets the retention requirements.

	g.  On 30 March 1989, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

	h.  Special Court-Martial Order Number 96, dated 14 August 1989 shows the sentence had been affirmed and the bad conduct discharge would be executed. 

	i.  On 22 August 1989, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3; section IV,  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) with a bad conduct discharge.  He completed 3 years, 0 months, and 9 days of active service with 143 days of lost time.  He was authorized or awarded:

* Army Achievement Medal
* Army Good Conduct Medal (1st Award)
* Army Service Ribbon
* Overseas Service Ribbon
* Noncommissioned Officer Professional Development Ribbon (numeral 2)
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Cal)

	j.  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.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and the affirmed sentence ordered duly executed.

5.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 offense 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 635-200 (Active Duty Enlisted Administrative Separations), 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 states that 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, security reasons, or for the good of the service in selected circumstances.

	d.  Paragraph 3-11 (DD Form 259A) Bad Conduct Discharge Certificate) 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.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department.

4.  Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

5.  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)	 AR20180012612


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