IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220004841 APPLICANT REQUESTS: an upgrade of his characterization of service from bad conduct to honorable, and a hearing before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 14 June 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), period ending 15 January 1992 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 he was young and made bad financial decisions. He returned to his unit after his discharge, paid his debt in full, and served six months confinement. Prior to this he had no bad reviews and a clean record. During his discharge he was informed his discharge would automatically be upgraded. He wants to clear his mistakes. He loves his country. 3. The applicant enlisted in the Regular Army on 6 April 1988, after having prior enlisted service. He completed training and was awarded the military occupational specialty (MOS) 91A (Medical Specialist). 4. On 21 April 1989, the applicant extended his contract to complete an overseas tour. 5. A DA Form 268-E (Report of Suspension of Favorable Personnel Actions (FLAG)), shows a non-transferrable flag for adverse action was initiated and effective 14 January 1992. 6. A DD Form 497 (Confinement Order), 5 March 1992, shows the applicant was confined as a result of a court-martial for utterance of worthless checks. 7. General Court-Martial Order Number 17, issued by Headquarters, 6th Infantry Division (Light), shows a Court-Martial convened on 5 March 1992. The applicant was arraigned, tried, and convicted of the following charges and specifications: Charge Article 134 – * Specification 1: in that the applicant did, on or about 24 December 1991 utterance of a worthless check, for $150.00. * Specification 2: in that the applicant did, on or about 27 December 1991 utterance of a worthless check, for $150.00. * Specification 3: in that the applicant did, on or about 27 December 1991 utterance of a worthless check by dishonorably failing to maintain funds, for $10.00. * Specification 4: in that the applicant did, on or about 27 December 1991 utterance of a worthless check by dishonorably failing to maintain funds, for $23.95. * Specification 5: in that the applicant did, on or about 28 December 1991 utterance of a worthless check by dishonorably failing to maintain funds, for $150.00. * Specification 6: in that the applicant did, on or about 30 December 1991 utterance of a worthless check by dishonorably failing to maintain funds, for $19.00. * Specification 7: in that the applicant did, on or about 30 December 1991 utterance of a worthless check, for $7400.00. * Specification 8: in that the applicant did, on or about 30 December 1991 utterance of a worthless check by dishonorably failing to maintain funds, for $150.00. * Specification 9: in that the applicant did, on or about 30 December 1991 utterance of a worthless check by dishonorably failing to maintain funds, for $77.49. a. His sentence included a reduction to grade of private E-1, forfeiture of all pay and allowances, confinement for eight months, and a bad conduct discharge (BCD). b. The sentence was adjudged on 5 March 1992. d. On 8 May 1992, the sentence was approved. Only so much of the sentence as provides for reduction to the grade of private, total forfeiture of all pay and allowances, confinement for six months, and BCD is approved and, except for that part pf the sentence extending to a BCD, will be executed. The record of trial was forwarded to the appellate authority for appellate review. 8. The chain of command recommended that the applicant be placed on excess leave pending initial action on his General Court-Martial conviction. 9. On 5 August 1992, the applicant’s duty status changed from confined military authorities to present for duty. 10. On 11 September 1992, the U.S. Army Court of Military Review, ordered a notice of Court-Martial Order correction to reflect the true proceedings of the trial by adding after the word “check” the words “by dishonorably failing to maintain funds” in Specifications 1 through 9 of the Charge. 11. General Court-Martial Order Number 54, issued by Headquarters, U.S. Army Armor Center and Fort Knox, 19 March 1993 shows the sentence has been finally affirmed. That portion of the sentence extending to confinement has been served. Article 71(c) having been complied with; the BCD will be executed. 12. The applicant was discharged from active duty on 3 May 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 3, section IV, as the result of court-martial, other, with the issuance of a BCD Certificate. a. He completed 4 years, 7 months, and 27 days of net active service this period. He was assigned a separation code of "MCD" and a reentry code of "N/A." Lost time during this period under 10 U.S.C. 972: 920305-920405; not chargeable under 10 U.S.C. 972: 920406-920805. b. He was awarded or authorized the Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 13. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The evidence shows a general court-martial convicted the applicant of uttering worthless checks and/or having insufficient funds. The court sentenced him to a bad-conduct discharge and reduction to E-1. The evidence shows his trial by a court-martial was warranted by the gravity of the offense charged. His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. The applicant does not provide any evidence of post-service achievements or letters of reference to support 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. 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. REFERENCES: 1. Title 10, U.S. Code, 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. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. 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. c. 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. 3. 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. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military BCM/NRs and DRBs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004841 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1