ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20190002461


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)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 6 September 1994
*	DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge 
from Active Duty), dated 15 June 2001

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 given a BCD due to false swearing.  He was unaware 
the check he received was stolen.  This offense should have been a reprimand and not 
a reason to discharge him.

3.  The applicant enlisted in the Regular Army on 17 October 1989.

4.  Before a special court-martial on or about 5 September 1991, at Fort Ord, CA, the 
applicant was found guilty of false swearing on 9 January 1991.  The court sentenced 
him to confinement for two months, forfeiture of $502 pay per month for two months, 
and separation from service with a BCD.  The sentence was approved on 18 November 
1991 and the record of trial was forwarded to the U.S. Army Court of Military Review for 
appellate review.

5.  The guilty findings and sentence were affirmed by appellate review on 4 September 
1992.
6.  Special Court-Martial Order Number 57, issued by Headquarters, U.S. Army Armor 
Center and Fort Knox, Fort Knox, KY on 5 July 1994, noted that the applicant's 
sentence has been affirmed and ordered the BCD duly executed.

7.  The applicant was discharged on 6 September 1994.  His DD Form 214 shows he 
was discharged under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), as a result of court-martial, with his service 
characterized as bad conduct. 

8.  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 board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find evidence of error, injustice, 
or inequity; the applicant had no personal meritorious awards, no wartime service and 
no mitigating circumstances for the misconduct.  Neither did the Board find sufficient 
evidence of post-service honorable conduct that might have mitigated the discharge 
characterization.  The Board agreed that the applicant’s discharge characterization is 
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.

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, 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)	 AR20190002461

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