ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 August 2019

	DOCKET NUMBER:  AR20180015100


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Two Letters of Support
*	Letter from his Physician Concerning his Medical Diagnosis

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 he did not commit the crime he was accused of (stealing).  He 
was young and immature and should not have admitted to something he did not do.  He 
was being harassed and admitted to the crime under undo duress.

3.  The applicant provides:

	a.  A letter of support from his pastor, which states, he has known the applicant for 
40 years as a community friend, church brother, and now as his pastor.  The applicant 
displays honesty and integrity and has proven himself faithful, not only to God and the 
church, but to anything that is asked of him.  He has served on the finance committee 
for many years.  The applicant was appointed as a deacon in 2004 and has served his 
post faithfully, honestly, diligently, and with integrity.  He has been a great asset to the 
community, church, and every organization he has been a part of.  He adds that he 
considers the applicant to be reliable and trustworthy.  He will vouch for the applicant 
and support him in any allegations brought against him that deform his character as an 
honest and trustworthy man.

	b.  A letter of support from XX (his employer), which states, he understands the 
applicant is pursuing to have his discharge upgraded.  He would not spend his time 
writing if he did not feel that his character was of such to deserve that he be honored in 
receiving an upgrade.  He has been employed with him since 2010 and in the 8 years 
that he has known the applicant, he has always been trustworthy, honorable, polite, and 
hard working.  His attendance has been excellent even though he had some health 
issues.  He has been trusted with the company vehicles to deliver parts to customers 
and has been trusted with company credit cards with large credit limits with no 
problems.  He wishes he could better put into words his feelings about the applicant’s 
character, but words will not do it justice.  If there was something bad to share, he would 
share it, but there is nothing bad to share.

	c.  A letter from his social worker, dated 24 April 2019, which states the applicant 
has end stage renal disease, hypertension, and Nephrotic Syndrome with focal and 
Segmental Glomerular lesions.

4.  A review of the applicant’s service records show:

	a.  He enlisted in the Regular Army on 23 June 1981.

	b.  He served in Germany from 12 December 1982 to 19 March 1982.

	c.  He accepted nonjudicial punishment on 19 April 1983 for failing to obey an order 
by having alcohol in the barracks.

	d.  He was convicted by special court-martial on 4 June 1983 for stealing a wallet of 
another Soldier.  He was sentenced to forfeit $382 pay per month for 2 months, to be 
confined at hard labor for 2 months, and to be discharged from the Army with a bad 
conduct discharge.

	e.  On 5 August 1983, the convening authority approved the sentence and except for 
the bad conduct discharge, ordered it executed.  He also forwarded the record of trial to 
the Judge Advocate General of the Army for review by a Court of Military Review.

	f.  On 21 December 1984, the Court of Military Review affirmed the findings of guilty 
and the sentence.

	g.  On 17 July 1985, the convening authority ordered the sentence duly executed 
after the provisions of Article 71(c) having been complied with.

	h.  On 12 August 1985, the applicant was discharged from active duty with a bad 
conduct characterization of service.  His DD Form 214 (Certificate of Release or 
Discharge from Active Duty) shows he completed 4 years and 2 days of active service.  
It also shows he was awarded or authorized:

*	Army Service Ribbon
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar

5.  The applicant applied to the Army Discharge Review Board (ADRB) and on 11 May 
1998, the ADRB after careful consideration and review of his military records and all 
available evidence denied his request for a discharge upgrade.

6.  By regulation, 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.

7.  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:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD Guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigation for his misconduct, but did find that the applicant provided evidence of post-
service achievements and letters of reference in support of a clemency determination.  
Considering the nature of his misconduct and the compelling nature of his post-service 
evidence, the Board determined that based on a preponderance of evidence, the 
character of service the applicant received was too harsh and an upgrade is 
appropriate.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was warranted.


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 amending 
his DD Form 214 for the period of service ending 12 August 1985 to reflect in item 24 
(Character of Service) – “General, under honorable conditions”.

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 his character of service to “Honorable”.

 


	  
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.


ADMINISTRATIVE NOTE(S):

Not Applicable


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 Separations), 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, 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 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 the service.

	d.  Paragraph 3-11 (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.  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.  
These factors include the severity of the misconduct and the length of time since the 
misconduct.  

ABCMR Record of Proceedings (cont)	 AR20180015100

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