IN THE CASE OF:    

BOARD DATE:  15 November 2021

DOCKET NUMBER:  AR20210011802


APPLICANT REQUESTS:  The applicant requests, in effect, to change his discharge to 
a bad conduct discharge (BCD).  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Transfer or Discharge) for the period ending                      
26 September 1972
*	DD Form 214 (Report of Separation from Active Duty) for the period ending           
21 October 1975

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 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 his second discharge is incorrect.  He did not receive a 
“dishonorable”.  He was given a “bad conduct discharge”.  He also asked the question, 
how can someone change his BCD discharge to dishonorable without contacting him?

3.  On 26 September 1972, a DD Form 214 shows the applicant was honorably 
discharged for the purpose of immediately reenlisting in the Regular Army.    

4.  On 27 September 1972, he reenlisted in the Regular Army for a period of 3 years.  A 
review of his record shows:

	a.  The applicant received non-judicial punishment under the provisions of Article 15 
of the Uniform Code of Military Justice (UCMJ) on three (3) separate occasions for:

*	wrongfully possessing 5 ounces, more or less, of marijuana
*	being disrespectful in language and bearing toward a superior commissioned 
officer 
*	receiving stolen Government property and falsely altering his birthdate on his 
identification card

	b.  On 26 August 1974, a Bar to Enlistment/Reenlistment Certificate was approved 
and imposed against the applicant based on receiving NJPs, indebtedness, and 
disciplinary problems.    

	c.  On 1 November 1974, the applicant was convicted by a special court-martial.  He 
pleaded guilty and was found guilty of stealing money ($420) and a wallet from a 
sergeant.  His sentence consisted of reduction to the grade of private (E-1), forfeiture of 
$200 pay per month for 6 months, and confinement at hard labor for 3 months, and that 
he be discharged from the Army with a Bad Conduct Discharge.  The sentence was 
approved on 29 January 1975.  The record of trial was forwarded to the U.S. Army 
Court of Military Review for appellate review.    

	d.  On 29 April 1975, the U.S. Army Court of Military Review affirmed the applicant’s 
findings of guilty and sentence.      

	e.  On 17 October 1975, a special court-martial order announced the completion of 
the applicant's appellate review process and directed the execution of his bad conduct 
discharge.  

	f.  On 21 October 1975, the applicant was discharged from the Army as a result of 
court-martial.  The DD Form 214 that he signed for shows he was issued a DD Form 
259A (Bad Conduct Discharge Certificate), and his service was characterized as “under 
other than honorable conditions”.  

5.  The applicant’s contentions were reviewed and considered; nevertheless, he 
provided no evidence to support his claims.  The evidence of record clearly shows he 
was discharged under other than honorable conditions and issued a Bad Conduct 
Discharge Certificate. 

6.  In order to justify correction of a military record the applicant must show to the 
satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in 
error or unjust.    

7.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records (ABCMR).  In 
pertinent part, it states that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The ABCMR will decide cases based on the 
evidence of record.  It is not an investigative agency.      
    
8.  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.

9.  The Board can consider the applicant's petition, service record, and statements in 
light of the published guidance on equity, injustice, or clemency.       


BOARD DISCUSSION:

After reviewing the application, all supporting documents and the evidence found within 
the military record, the Board determined that relief not warranted. 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 frequency and nature of the misconduct and the reason for separation.  
The Board found insufficient evidence of in-service mitigating factors to overcome the 
misconduct and the applicant provided no evidence of post-service achievements or 
letters of reference to weigh in support of a clemency determination. Based on a 
preponderance of evidence available for review, the Board determined that the 
character of service the applicant received upon separation was not in error or unjust.
  


















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.  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.

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.  In 
pertinent part, the regulation states, a Soldier was given a bad conduct discharge 
pursuant only to an approved sentence of a general or special court-martial.  The 
appellate review had to have been completed and the affirmed sentence ordered duly 
executed.  

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  

     a.  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.  

     b.  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)	AR20210011802


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEDING



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