ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20180015643 APPLICANT REQUESTS: 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 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 an upgrade is needed in order to get benefits. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 29 November 1988. He served in Korea from 30 January 1989 to around June 1990. b. On 26 June 1990, Combined Field Army Korea of: * one specification of attempting to wrongfully transfer duty free goods to a person not authorized duty free imports or tax free purchases * one specification of wrongfully transferring duty free goods to a person not authorized duty free imports or tax free purchases * one specification of wrongfully using a ration control plate and a latter of authorization purchase request made in the name of another person * one specification of resisting apprehension by an armed forces policeman * one specification of assaulting a Korean Soldier by striking and forcefully pushing him * one specification of wrongfully using and possessing with intent to deceive, a certain instrument perpetrating to another's military identification card c. The court sentenced him to reduction to the lowest enlisted grade of E-1, confinement for 4 months, forfeiture of $400 pay per month for 4 months, and a bad conduct discharge. d. On 10 August 1990, the convening authority approved a lesser sentence of reduction to private (PVT)/E-1, confinement for 3 months, forfeiture of $200 pay per month for 3 months, and a bad conduct discharge, 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 31 January 1992, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. f. General Court-Martial Order Number 85, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, on 8 November 1993, shows the sentence was finally affirmed and the bad conduct discharge was ordered executed. g. He was discharged on 4 January 1994. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of PVT/E-1 as a result of court-martial conviction in accordance with ARMY Regulation (AR) 635-200 (Personnel Separation), chapter 3, with a bad conduct discharge. He completed 4 years, 10 months, and 28 days of active service, and he had lost time from 26 June 1990 from 3 September 1990. His DD Form 214 also shows he was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Qualification Badge with M-16 Rifle * Marksman Qualification Badge with Hand Grenade 4. By regulation (AR 635-200), a Soldier 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the misconduct, some involving violent behavior towards others in a foreign country, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 provides 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. Paragraph 3-7c 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, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 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 Uniform Code of Military Justice, 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 Uniform Code of Military Justice 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. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation and job history * Availability of other remedies * Whether misconduct may have been youthful indiscretion * Character references ABCMR Record of Proceedings (cont) AR20180015643 4 1