ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	BOARD DATE:  10 December 2019

	DOCKET NUMBER:  AR20180016020


APPLICANT REQUESTS:  

*	upgrade of his bad conduct discharge to under honorable conditions (general)
*	personal appearance before the Board

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 (ABCMR) 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:

	a.  His discharge was inequitable because it was based on one isolated incident in 
over 36 months of service with no other adverse action.

	b.  He had no prior Articles 15 before his court-martial, that resulted because of 
stress, peer pressure, and substance abuse, which caused mental incompetency.  

	c.  He feared to do an assignment left for him by a sergeant who left him 
responsible while the sergeant did activities contrary to military rules and guidelines.  
That alone triggered the events that happened to him and a fellow Soldier.  

	d.  On that night, the remorseful incident happened.  He has been grieving after 38 
years.  His buddies were getting promoted but he was denied promotion because of the 
pending court-martial. 

	e.  On that evening, he was ordered to pull charge of quarters (CQ) after 
consuming alcohol while on duty.  He actually tried to refuse the CQ duties.  The CQ 
was gone for several hours for illegal reasons.  Upon his return, he left for date with a 
female companion.  Once he arrived at his destination, he was unexpectedly 
approached from behind with verbal threats.  The threats scared him to the point that he 
pulled a box cutter which he used for his duties as a wireman and cut a fellow 
brother/Soldier because he thought and felt he was in harm's way.  

3.  The applicant enlisted in the Regular Army on 14 January 1980.  He was awarded 
military occupational specialty 36K (Tactical Wire Operations Specialist) upon 
completion of initial entry training.  

4.  On 10 March 1981, the applicant was found guilty by a general court-martial of:

*	assaulting another Soldier by cutting him in the abdomen, a means likely to 
produce grievous bodily harm, to wit:  a box cutter
*	assaulting another Soldier, a person then having and in the execution of military 
police (MP) duties by kicking him in the head
*	assaulting two other Soldiers, persons then having and in the execution of 
military police (MP) duties by spitting on them
*	resisting being lawfully apprehended by the MPs
*	disorderly conduct 
*	unlawfully carrying a conceal weapon

5.  The sentence consisted of reduction to the grade of E-1, confinement at hard labor 
for two years, forfeiture of all pay and allowances, and a bad conduct discharge.

6.  On 22 March 1982, the U.S. Army Court of Military Review affirmed the finding of 
guilty and the sentence.

7.  On 22 October 1982, the sentence having been affirmed and the provisions of 
Article 71(c), Uniform Code of Military Justice, having been complied with, the bad 
conduct discharge was ordered executed.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he was discharged on 23 November 1982 under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, by 
reason of court-martial with a bad conduct discharge.  

9.  On 20 August 2019, the Army Review Boards Agency psychologist/medical advisor 
provided an advisory opinion.  The advisory found no evidence of behavioral health 
condition that would mitigate the applicant's acts of misconduct that led to his bad 
conduct discharge.  A copy of the complete medical advisory was provided to the Board 
for their review and consideration.

10.  The applicant was provided a copy of the advisory opinion on 25 October 2019 and 
given an opportunity to submit comments.  He did not respond.

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 charges against him, the 
results of a court-martial and the reason for his separation.  The Board considered the 
review and conclusions of the medical advising official and concurred with the lack of 
mitigation assessment.  The Board found insufficient evidence of in-service mitigation to 
overcome the misconduct and the applicant provided no evidence of post-service 
achievements or letters of reference in support of a clemency determination.  Based on 
a preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

2.  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. 

3.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.





















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 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 sets forth the basic authority for the separation of enlisted 
personnel.  The regulation in effect at the time of the applicant's discharge provided in 
paragraph 11-2 that an enlisted person would be given a bad conduct discharge 
pursuant only to an approved sentence of a general or special court-martial, after 
completion of appellate review and after such affirmed sentence had been ordered duly 
executed.  

	b.  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.  

	c.  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.  

3.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority 
under which this Board acts, the ABCMR is not empowered to set aside a conviction.  
Rather, it is only empowered to change the severity of the sentence imposed in the 
court-martial process and then only if clemency is determined to be appropriate.  
Clemency is an act of mercy or instance of leniency to moderate the severity of the 
punishment imposed.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to the Service Discharge Review Boards (DRBs) and Service 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 on 
the basis of 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.  

5.  Army Regulation 15-185 (ABCMR), paragraph 2-11, provides that applicant's do not 
have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a 
formal hearing whenever justice requires.  

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180016020

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