ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20180016807


APPLICANT REQUESTS:  His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 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 was charged with receiving $71.00 over the amount of authorized purchases in the commissary.  He feels this was an unfair discharge that has caused him to be forever denied receiving Department of Veterans Affairs (VA) hospital benefits.  Since leaving the service he has always been employed.  

3.  The applicant enlisted in the Regular Army on 3 January 1977.

4.  The applicant received nonjudicial punishment on 26 January 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty, disobeying a lawful order, and breaking restriction.

5.  The applicant reenlisted in the Regular Army on 3 July 1980.

6.  Before a special court-martial on or about 28 May 1982, at Yongsan, South Korea, the applicant was found guilty of failure to obey a lawful order (two specifications) and failure to obey a lawful general order (three specifications).  His sentenced included his reduction to the rank/grade of private/E-1, confinement at hard labor for three months, and separation from service with a BCD. 

7.  The available record does not include copies of the court-martial authority's approval of the court-martial findings and sentence.

8.  The applicant was discharged on 28 March 1985.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial conviction, and his service characterization was bad conduct.  His DD Form 214 further shows he was discharged in the rank/grade of private/E-1.

9.  The Board may consider the applicant's prior honorable discharge and statement 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 discussed the applicant’s record, the frequency and nature of his misconduct, and whether to apply clemency.  Upon reviewing the records, the Board determined that the applicant’s first enlistment period could be categorized as honorable service, as shown in the Administrative Notes, but further determined that there were no mitigating factors in the record or provided by the applicant to support a change to the character of his service at discharge by reason of clemency. 

2.  After reviewing the application and all supporting documents, the Board determined 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:
With the exception of the administrative correction shown in the Administrative Note(s) below, 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.

ADMINISTRATIVE NOTE(S):

A review of the applicant's record shows his DD Form 214, for the period ending 
28 March 1985, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to 
item 18 (Remarks): 

* SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
* CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770103 UNTIL 800702



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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
   
   c.  Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge only pursuant to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  
   
4.  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.

5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  

   a.  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, Boards 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.  

   b.  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.

ABCMR Record of Proceedings (cont)	 AR20180016807
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