ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 October 2019

	DOCKET NUMBER:  AR20180016619


APPLICANT REQUESTS:  Upgrade of his bad conduct discharge (BCD). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	medical statement from the Hyde Street Community Services, Inc., San 
Francisco, CA, dated 6 November 2018

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 he accepted a bad conduct discharge as a result of a court 
martial not fully understanding the consequence.  He was experiencing mental 
anguish during his Army service.  His squadron leadership was extremely 
intimidating and he often experienced verbal abuse, which contributed to his 
constant fear and distress.  He was very young then and wanted to continue with his 
military service.  To cover up his fear and anxiety, he used marijuana and heroin to 
keep him going.  The feelings of anxiety and depression were made worse when he 
was a part of a bus crash in Germany which was very traumatizing.  He sustained a 
head injury and he received treatment in a military hospital in Holland.  He was 
never the same when he got out of the military.  He always lives in fear due to what 
happened during his service.  

3.  The applicant enlisted in the Regular Army on 16 May 1989.  

4.  On 4 June 1991, the applicant was found guilty by a general court-martial of one 
specification of wrongful use of marijuana and one specification of wrongful use of 
heroin.  The sentence consisted of forfeiture of all pay and allowances, confinement 
for six months, and a bad conduct discharge.  

5.  On 28 August 1991, the sentence was approved and, except for the part of the 
sentence extending to a bad conduct discharge, the sentence was ordered 
executed.  

6.  On 7 January 1993, the sentence having been affirmed and the provisions of 
Article 71(c), Uniform Code of Military Justice, having been complied with, a bad 
conduct discharge was executed.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows he was placed on excess leave (creditable for all purposes except pay 
and allowances) from 26 November 1991 to 5 February 1993.  It also shows he was 
discharged on 5 February 1993, as a result of court-martial, with a bad conduct 
discharge.  

8.  The applicant provided medical statement from the Hyde Street Community 
Services, Inc., San Francisco, CA, dated 6 November 2018, that contains, among 
other statements, the following statement:  

Currently, [the applicant] is diagnosed with dysthymia, a disorder spanning most 
of his life, however he is also prone to feelings of anxiety with periods of elevated 
activity, mood, and speech.  Previously he has been diagnosed with alcohol use 
disorder, which is currently in early remission.  Further, based on his descriptions 
of his time in the military and the years following his discharge, he met criteria for 
PTSD [post-traumatic stress disorder] diagnosis.  These symptoms are currently 
in remission, and there are lasting impacts for [the applicant].  

9.  On 8 October 2019, the Army Review Boards Agency clinical 
psychologist/medical advisor provided an advisory opinion.  The advisory found 
insufficient evidence to determine if an in service behavioral health condition existed 
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 14 October 2019 
and given an opportunity to submit comments.  He did not respond.

BOARD DISCUSSION:

The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, regulatory requirements, and published DoD guidance for 
consideration of discharge upgrade requests.  As a matter of clemency, the Board 
determined that the applicant’s discharge should be upgraded to a general under 
honorable conditions discharge. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department 
of the Army records of the individual concerned be corrected by showing that the 
applicant’s character of discharge is general under honorable conditions for the 
period ending 5 February 1993 and provide him a new DD Form 214 to that effect.

	  
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 (Personnel Separations – Enlisted Personnel) sets 
forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3 prescribes the policies and procedures for separating members 
with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be 
given a bad conduct discharge pursuant only to an approved sentence of a general 
or a special court-martial and that the appellate review must be completed and 
affirmed before the sentence is 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.  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.
NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180016619

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