ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		BOARD DATE:  26 April 2019

	DOCKET NUMBER:  AR20190000600


APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of 
Military Records (ABCMR) decision that was promulgated in Docket Number  
AC95-07610 on 24 January 1996.  Specifically, he requests his bad conduct discharge 
(BCD) be upgraded to an honorable 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)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 14 February 1992

FACTS:

1.  Incorporated herein by reference are military records that were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number  
AC95-07610 on 24 January 1996.

2.  The applicant states, in effect, this was his second enlistment and the punishment 
was too severe for the alleged crime.  He is a dentist and this bad conduct discharge 
has caused him trouble in his current profession.  He did not have proper representation 
while in Germany and since his discharge, he has proven himself to be trustworthy and 
of good morale standard over the last twenty years.    

3.  The applicant enlisted in the Regular Army on 26 January 1984 and reenlisted on  
30 July 1986.  

4.  The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6, effective  
1 May 1989.

5.  Court-martial charges were preferred against the applicant for violations of the 
Uniform Code of Military Justice (UCMJ).  Specifically, he was charged with making a 
false claim against the U.S. Government; larceny of funds; and wrongfully and 
unlawfully making a false sworn statement under oath and wrongfully endeavoring to 
influence testimony.

6.  Before a general court-martial on 6 December 1990, at Bad Kreuznach, Federal 
Republic of Germany, the applicant plead guilty to all charges.  Consequently, he was 
sentenced to reduction in rank/grade to private (PVT)/E-1, forfeiture of $300.00 pay per 
month for 18 months, confinement at hard labor for 18 months, and separation from 
service with a BCD.  The sentence was approved on 15 March 1991 and the record of 
trial was forwarded to the U.S. Army Court of Military Review for appellate review.

7.  The applicant was reduced from the rank/grade of SSG/E-6 to the rank/grade of 
private (PVT)/E-1, effective 15 March 1991.

8.  The U.S. Army Court of Military Review affirmed the sentence on 20 August 1991.

9.  General Court-Martial Order Number 2, issued by Headquarters, U.S. Army 
Correctional Brigade, Fort Riley, Kansas on 15 January 1992, noted that the sentence 
had finally been affirmed and ordered the BCD duly executed.

10.  The applicant was discharged on 14 February 1992.  The DD Form 214 he was 
issued confirms he received a bad conduct discharged as a result of a court-martial 
conviction.  The DD Form 214 notes the applicant's awards and decorations, including 
the Army Achievement Medal (2nd Award), Army Good Conduct Medal (2nd Award),  
Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, 
Driver Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  

11.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered.  The Board applied Department of Defense standards of liberal 
consideration to the complete evidentiary record and did not find any evidence of error, 
injustice, or inequity.  He did not provide character witness statements or evidence of 
post-service achievements for the Board to consider.  Based upon the record, the Board 
agreed that the applicant's discharge characterization was warranted as a result of the 
misconduct.



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 to amend the decision of the ABCMR set forth in Docket Number AC95-
07610 on 24 January 1996.


	  
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 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), in effect at 
the time, set 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.

	c.  Chapter 3 provided 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 has been ordered 
duly executed.

3.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, USC, 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.  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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190000600

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