IN THE CASE OF:  

		BOARD DATE:  6 October 2021

		DOCKET NUMBER:  AR20210010866


APPLICANT REQUESTS:  

*	an upgrade of his bad conduct discharge (BCD)
*	to be issued a DD Form 214 (Certificate of Release or Discharge from Active 
Duty) for his first enlistment 
*	a personal appearance before the Board 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 for the period ending 21 September 2000

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, 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, in effect, he requests an upgrade of his bad conduct discharge, 
and he never received his DD Form 214 from his first enlistment.  He has always tried to 
upgrade his BCD but was always told that, there was nothing that could be done.  Also, 
no one wanted to help once they heard of his discharge.  

3.  On 4 January 1993, the applicant enlisted into the Regular Army for a period of 4 
years.  He immediately reenlisted for a period of 3 years on 6 September 1996.  

4.  On 1 November 1996, he was promoted from the rank/pay grade of corporal/E-4
to sergeant/E-5.    

5.  On 7 November 1997, the applicant was arraigned and convicted by a General
Court-Martial.  He was found guilty of larceny of personal property, housebreaking,
and making two (2) false official statements.  He was sentenced to be reduced to
the grade of E-1, confinement for 15 months, and to be discharged from the service with
a bad conduct discharge.   

6.  On 5 February 1998, the General Court-Martial Convening Authority approved the 
applicant’s sentence, and, except for that portion of the sentence extending to a bad 
conduct discharge would be executed.  The request for deferment of reduction in rank
and forfeitures submitted by counsel for the applicant was denied.                  

7.  The applicant asserted that an error in the addendum to the Staff Judge Advocate
post-trial recommendation required return of the case for a new action.  On 11 March
1999, the U.S. Army Court of Criminal Appeals disagreed that relief was warranted.
The complete memorandum opinion was not available.  

8.  On 2 June 2000, a General Court-Martial Order announced the applicant’s sentence 
had been finally affirmed and the appellate review process had been completed.  The 
bad conduct discharge was ordered executed. 

9.  On 21 September 2000, the applicant was separated with a bad conduct discharge
as a result of court-martial.  He completed 7 years, 8 months, and 18 days of net active
service with time lost from 7 November 1997 to 22 October 1998.  Item 18 (Remarks) of
his DD Form 214 states “member has not completed first full term of service”.  He was
awarded or authorized the:

*	Army Achievement Medal (4th award)
*	National Defense Service Medal 
*	Humanitarian Service Medal
*	Noncommissioned Officers Professional Development Ribbon (Primary Level)
*	Army Service Ribbon
*	Overseas Service Ribbon (2nd award)
*	Sharpshooter Qualification Badge with M-16 rifle bar
*	Sharpshooter Qualification Badge with Hand Grenade bar 
*	Expert Infantryman Badge 
*	Parachutist Badge
*	Driver and Mechanic Badge (Driver-W)

10.  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.

11.  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.

12.  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 that, 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.    

13.  Army Regulation 635-8 (Separation Processing and Documents) prescribes policy
and procedural guidance relating to transition management.  It explains separation
document preparation, distribution, correction, and transition processing.  The DD Form
214 is a summary of the Soldier's most recent period of continuous active duty.  It 
provides a brief, clear-cut record of all current active, prior active, and 
prior inactive duty service at the time of release from active duty, retirement, or 
discharge.  A DD Form 214 will be prepared for all Regular Army Soldiers on 
termination of active duty because of administrative separation (including separation 
because of retirement or expiration term of service), physical disability separation, or 
punitive discharge resulting from a court-martial.  A DD Form 214 will not be prepared 
for Soldiers discharged for immediate reenlistment in the Regular Army.

14.  In regard to the applicant's request for a personal appearance, Army Regulation
15-185, states an applicant is not entitled to a hearing before the Board; however, the
Board or the Director of ABCMR may authorize a personal appearance.      

15.  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.  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:

1.	The applicant's request for a personal appearance was carefully considered. In this 
case, the evidence of record was sufficient to render a fair and equitable decision. As a 
result, a personal appearance before the Board is not necessary to serve the interest of 
equity and justice in this case.  

2.	After reviewing the application, all supporting documents and the evidence found 
within the military record, the Board determined that relief was not warranted. The 
Board carefully considered the applicants request, supporting documents, evidence in 
the records and published DoD guidance for consideration of discharge upgrade 
requests.  The Board considered the applicant's statement, his record of service, the 
frequency and nature of his misconduct, the reason for his separation and whether to 
apply clemency.  The Board found insufficient evidence of in-service mitigating factors 
for the misconduct and the applicant provided no evidence of post-service 
achievements or letters of support to weigh in support of a clemency determination.  
Based on a preponderance of evidence, the Board determined that the character of 
service the applicant received upon separation was not in error or unjust. 

3.	Prior to closing the case, the Board did note the analyst of record administrative 
notes below, and recommended the correction is completed to more accurately depict 
the military service of the applicant.






























BOARD VOTE

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

: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):

A review of the applicant's record shows his DD Form 214 (Certificate of Release or
Discharge from Active Duty), for the period ending 21 September 2000, is missing 
important entries that may affect his eligibility for post-service benefits. As a result, 
amend the DD Form 214 by removing “member has not completed first full term of
service”, and adding the following entries to item 18 (Remarks):

•    "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE"
*	"IMMEDIATE REENLISTMENTS THIS PERIOD 19930104 - 19960905"
•    "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19930104 UNTIL
     19960905"



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  With respect to courts-martial, and related administrative 
records pertaining to court-martial cases tried or reviewed under the Uniform Code of 
Military Justice (UCMJ), action to correct any military record of the Secretary's 
Department may extend only to actions taken by reviewing authorities under the UCMJ 
or action on the sentence of a court-martial for purposes of clemency.  The Secretary of 
the Army shall make such corrections by acting through boards of civilians within the 
executive part of the Army.

2.  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.  

3.  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 that, 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.    

4.  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.

5.  Army Regulation 635-8 (Separation Processing and Documents) prescribes policy
and procedural guidance relating to transition management.  It explains separation
document preparation, distribution, correction, and transition processing.
	
      a.  The DD Form 214 is a summary of the Soldier's most recent period of continuous
active duty.  It provides a brief, clear-cut record of all current active, prior active, and 
prior inactive duty service at the time of release from active duty, retirement, or 
discharge.  A DD Form 214 will be prepared for all Regular Army Soldiers on 
termination of active duty because of administrative separation (including separation 
because of retirement or expiration term of service), physical disability separation, or 
punitive discharge resulting from a court-martial.  A DD Form 214 will not be prepared 
for Soldiers discharged for immediate reenlistment in the Regular Army. 
  
     b.  The detailed instructions for preparation of the DD Form 214 state, in pertinent
part:  

		(1) Mandatory entry:  "SOLDIER [HAS] [HAS NOT] COMPLETED FIRST FULL
TERM OF SERVICE."  This information assists the State in determining eligibility for 
unemployment compensation entitlement.

		(2) To determine if an enlisted Soldier has completed the first full term of 
enlistment, refer to the enlistment contract and any extensions to those initial enlistment 
documents and compare the term of enlistment to the net service in block 12c (Net 
Active Service) of the DD Form 214.  If the Soldier has completed or exceeded the initial 
enlistment, enter "HAS."  If block 12c of the DD Form 214 is less than the Soldier's 
commitment, enter "HAS NOT."
	
		(3)  For enlisted Soldiers with more than one enlistment period during the time 
covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" 
as a conditional entry and specify the inclusive dates for each period of reenlistment. 

		(4)  For Soldiers who previously reenlisted without being issued a DD Form 214 
and are separated with any characterization of service except "HONORABLE," enter 
"CONTINUOUS HONORABLE ACTIVE SERVICE FROM [first day of service for which
DD Form 214 was not issued] UNTIL [date before commencement of current 
enlistment]"; then enter the specific periods of reenlistment as prescribed above.    

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210010866


1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1