IN THE CASE OF: 

		BOARD DATE: 17 January 2023

		DOCKET NUMBER: AR20220006505


APPLICANT REQUESTS:  Reconsideration of his request for an upgrade of his bad 
conduct discharge (BCD) to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service 
Organization as Claimant's Representative)
*	DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the U.S.)
*	Certificate of Participation

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number on 12 July 2011.

2.  In a new argument, the applicant states correction should be made because this 
matter’s statutory limitation. He asks for consideration of his rehabilitation and that he is 
very remorseful. What transpired in the incident report resulted in court martial.

3.  On his DD Form 149, the applicant notes reprisal/whistleblower as a mitigating factor 
in the circumstances that resulted in his separation.

4.  On 3 October 1979, the applicant enlisted in the Regular Army for three years. Upon 
completion of training, he was awarded military occupational specialty 64C (Motor 
Transport Operator).

5.  On or about 29 May 1980, the applicant accepted non-judicial punishment (NJP) 
under Article 15 of the Uniform Code of Military Justice (UCMJ), for leaving from his 
appointed place of duty, on or about 11 May 1980. His punishment included extra duty 
for 14 days and reduction to E-1.

6.  He reenlisted in the Regular Army on 21 September 1982, for 3 years.
7.  The previous ABCMR case states that on 20 June 1984, NJP was imposed against 
the applicant for violating a lawful order (unit policy letter) by having dangerous items 
(large knives and M-60 firecrackers) in his barracks room.

8.  On 13 November 1984, the applicant accepted NJP under Article 15 of the UCMJ, 
for failing to go at the time prescribed to from his appointed place of duty, on or about 
30 October 1984.

9.  On 27 November 1984, the applicant accepted NJP under Article 15 of the UCMJ, 
for being disrespectful in language towards a superior noncommissioned officer, on or 
about 15 November 1984. His punishment included reduction to E-1, forfeiture of $250 
per month for two months, and restriction for 45 days.

10.  The previous ABCMR case states:

	a.  On 18 January 1985, NJP was imposed against him for three specifications of 
breaking restriction.

	b.  On 29 April 1985, he was convicted by a special court-martial of larceny of a 
video cassette recorder valued at $280.00. He was sentenced to a forfeiture of $350.00 
pay per month for 4 months, confinement for 100 days, and a BCD. The convening 
authority approved the sentence.

	c.  Special Court-Martial Order Number 50, Headquarters, 7th Infantry Division 
(Light) and Fort Ord, dated 30 April 1986, shows the applicant's sentence as corrected 
by the U.S. Army Court of Military Review Notice of Court-Martial Order Correction, 
dated 24 January 1986, had been finally affirmed and directed execution of the 
applicant's BCD.

11.  The applicant was discharged on 3 July 1986. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), chapter 3, section IV, as a result of court-martial. His service characterized 
as bad conduct. He was credited with 6 years, 6 months, and 10 days of net active 
service this period with 362 days of excess leave. His DD Form 214 further shows:

*	he was awarded or authorized Rifle M-16 Badge (Marksman). Hand Grenade 
Badge (Sharpshooter), Army Service Ribbon, Army Good Conduct Medal, and 
the Overseas Service Ribbon
*	the Remarks Block listed his reenlistment but not his continuous honorable 
service 

12.  The applicant petitioned the ABCMR on 8 December 2010, requesting to have his 
BCD upgraded to an honorable discharge. The Board voted to deny relief and 
determined that the overall merits of the case were insufficient as a basis for correction 
of the records of the individual concerned.

13.  The applicant provides a Certificate of Participation, from, Veterans Group that 
shows he participated as Master at Arms.

14.  The applicant did not provide any in-service documents supporting his contention of 
reprisal/whistleblower issues as contributing or mitigating factors in the circumstances 
that resulted in his discharge. 

15.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, U.S. Code (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.

16.  Clemency guidance to the Boards for Correction of Military/Navy Records 
(BCM/NR) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.

17.  In reaching its determination, the Board shall consider the applicant's petition, 
available records and/or submitted documents in support of the petition.

BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
Board noted that the applicant was tried by a court-martial for larceny. His trial by a 
court-martial was warranted by the gravity of the offense charged. 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. 
All requirements of law and regulation were met with respect to the conduct of the court-
martial and the appellate review process, and the rights of the applicant were fully 
protected. The applicant provided no evidence of post-service achievements or letters 
of reference 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.

2.  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

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

Except for the correction addressed in Administrative Note(s) below, 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 Dockets Number on 12 July 
2011.


	
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):

The applicant’s record shows he completed his first term of enlistment and reenlisted. 
Please amend block 18 of his DD Form 214 for the period ending 3 July 1986, by 
adding the entries

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 791003 UNTIL 820920

REFERENCES:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  The version in effect at the time provided that:

	a.  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.  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, section IV provided that a member would be given a BCD 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.

2.  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.

3.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and BCM/NRs 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 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.

   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, 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.

   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)	AR20220006505


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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