IN THE CASE OF:

		BOARD DATE: 28 February 2023

		DOCKET NUMBER: AR20220006895


APPLICANT REQUESTS: upgrade of his bad conduct discharge (BCD) to a more 
favorable discharge. Additionally, he requests an appearance before the Board via 
video/telephone.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the 3-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 is seeking an upgrade for the manifest of injustice that was 
laid upon him by the Army. Had he not been a new recruit, he would have only received 
a slap on the wrist. He understands that there had to be intent to defraud, but in 1984 
there was no intent as he was first ordered by the Army to have a checking account and 
was also informed that as long as he had checks he had money. As a new recruit, he 
took the word of his superiors as he was taught. He is not placing all the blame on what 
he was taught, but the Army must accept some if not most of the responsibility, for not 
properly training him and giving misinformation to new recruits. He was seeking a 
lifelong career in the Army as his father and grandfather had done. He was never able 
to accomplish this and never will. He is a proud veteran who loves his country and its 
military but what happened to him should never have happened. On his DD Form 149, 
the applicant notes a mental health issue is related to his request, as a contributing and 
mitigating factor in the circumstances that resulted in his separation.

3.  The applicant enlisted in the Regular Army on 20 March 1984, for 4 years. Following 
completion of training, he was awarded military occupational specialty 36M (Wire 
Systems Operator). 

4.  The applicant was reported as absent without leave (AWOL) on 15 August 1984; he 
was under charges for aggravated assault/disorderly conduct. He was apprehended by 
the Comanche Police and turned over to military authorities and confined on 17 August 
1984.

5.  Before a General Court Martial on or about 11 October 1984, at Fort Sill, OK, the 
applicant was found guilty of:

*	being AWOL from on or about 15 August 1984 to 17 August 1984
*	using provoking words and disobeying a lawful order on or about 27 July 1984
*	failing to maintain sufficient funds between 14 June 1984 and 14 July 1984
*	failing to maintain sufficient funds between 14 July 1984 and 9 August 1984
*	making and uttering five drafts totaling $500.00 between 16 July 1984 and 
20 July 1984 without sufficient funds
*	making and uttering a draft in the amount of $370.00 without sufficient funds on 
or about 2 August 1984

6.  The court sentenced him to forfeiture of all pay and allowances, confinement at hard 
labor for 15 months, and separation from service with a bad conduct discharge. 

7.  On 16 November 1984, the convening authority approved the sentence and except 
for the bad conduct discharge ordered it executed. The record of trial was forward to the 
appellate authority for appellate review. 

8.  On 19 February 1985, the U. S. Army Court of Military Review having found the 
approved findings of guilty, and the sentence correct in law and a fact, and having 
determined on the basis of the entire record that they should be approved, such findings 
of guilty and the sentence were affirmed.

9.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of 
the Uniform Code of Military Justice on 5 April 1985, for without authority failing to be at 
his appointed place of duty on or about 2 April 1985 and being derelict in the 
performance of his duties on or about 2 April 1985. His punishment consisted of oral 
reprimand, 14 days extra duty, and restriction.

10.  General Court Martial Order (GCMO) 322, dated 24 June 1985, shows the 
approved sentence as promulgated in GCMO 45, dated 16 November 1984, was finally 
affirmed having been complied with; the BCD was ordered to be duly executed.

11.  A Report of Mental Status Evaluation, dated 17 October 1985, shows the applicant 
had the mental capacity to understand and participate in the proceedings was mentally 
responsible and met retention requirements.

12.  The applicant was discharged on 23 October 1985. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty), as amended by a DD Form 215 (Correction to 
DD Form 214) confirms he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations-Enlisted Personnel) Chapter 3, Section IV, as a result 
of court-martial. His characterization of service was bad conduct (Separation Code JJD, 
Reentry Code 4). He was completed 4 months and 20 days of net active service. He 
lost time from 15 August 1984 to 22 October 1985. He was awarded or authorized the: 
Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Army 
Service Ribbon.

13.  On 23 September 2022, medical documents that support the applicant’s mental 
health issues was requested. He did not respond.

14.  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.

15.  By regulation, the ABCMR may, in its discretion, hold a hearing or request 
additional evidence or opinions. Applicants do not have a right to a hearing before the 
ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice 
requires.

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.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his bad conduct 
discharge to a more favorable discharge, and an appearance before the Board.

    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Pertinent to this advisory are the following: 

(1)	Applicant asserts mental health issues related to his request.  He elaborates a 
belief that had he not been a new recruit, his punishment would not have been as 
severe.  It appears he is claiming that he was ordered to have a checking 
account and was informed by superiors that as long as he had checks, he had 
money. 
(2)	He enlisted in the RA on 20 March 1984.
(3)	He was reported as AWOL on 15 August 1984; he was under charges for 
aggravated assault and disorderly conduct.  He was apprehended 17 August 
1984.
(4)	Before a General Court-Martial on/about 11 October 1984, he was found guilty of 
numerous offenses to include:  AWOL 15-17 August 1984; using provoking 
words and disobeying a lawful order on/about 27 July 1984; failing to maintain 
sufficient funds (multiple) and making/uttering drafts without sufficient funds 
(multiple). 
(5)	Report of Mental Status Evaluation dated 17 October 1985 shows the applicant 
had the mental capacity to understand and participate in proceedings, was 
mentally responsible, and met retention requirements.
(6)	He was discharged on 23 October 1985, per DD214 under AR 635-200, Chapter 
3 as a result of court-martial, characterized as bad conduct. 
(7)	He did not respond to a request for medical documents supporting mental health 
issues.
    c.  Supporting Documents

All supporting documents reviewed.  Lack of citation or discussion in this section should 
not be interpreted as lack of consideration.  DD Form 149 references other mental 
health conditions associated with application.  Available medical records to include 
Report of Mental Status Evaluation and separation physical documents reviewed.  
There was no evidence of any noteworthy mental health concerns or prior treatment, 

    d.  AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not 
an existing EMR at the applicant’s time of service.

    e.  JLV Available VA records were reviewed via JLV.  Records do not indicate any 
service-connected conditions and are void of relevant clinical data.

    f.  Other Query of HAIMS did not return any documents for this applicant.

Kurta Questions:


		(1)  Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Yes. The applicant asserts mental health 
conditions associated with the circumstances of his discharge.

		(2)  Did the condition exist or experience occur during military service? Yes, per 
his assertion only.

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
Partial.  The applicant asserts mitigation due to mental health factors at the time of his 
offense/discharge; under Liberal Consideration guidelines, his contention is sufficient for 
the Board’s consideration. It is the BH advisor’s professional opinion that there is no 
compelling evidence in the available records of a potentially mitigating condition at the 
time of his offenses and discharge; therefore, no nexus can be established between his 
mental health and the offenses leading to discharge. 

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.

	a.  The evidence shows a general court-martial convicted the applicant of being 
AWOL, using provoking words and disobeying a lawful order, failing to maintain 
sufficient funds, and making and uttering without sufficient funds, in violation of various 
Articles of the UCMJ. The adjudged and approved sentence is a bad-conduct discharge 
and reduction to E-1. 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 special 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.

	b.  The Board reviewed and agreed with the medical advisor’s finding no evidence in 
the records that the applicant had a condition or experience that mitigated his 
performance/misconduct. Additionally, he provides no evidence of post discharge 
achievements or character reference letters 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.

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, 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.

2.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. 

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

3.  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 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.

4.  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.

5.  Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an 
applicant seeking corrective action by ARBA is provided a copy of all correspondence 
and communications, including summaries of verbal communications, with any agencies 
or persons external to agency or board, or a member of the staff of the agency or 
Board, that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute.

6.  The Secretary of Defense directed the Service Discharge Review Boards (DRBs) 
and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 
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 (UOTHC) and who 
have been diagnosed with post-traumatic stress disorder (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.

7.  The Under Secretary of Defense for Personnel and Readiness provided clarifying 
guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The 
memorandum directed them to give liberal consideration to veterans petitioning for 
discharge relief when the application for relief is based in whole or in part on matters 
relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual 
harassment. Standards for review should rightly consider the unique nature of these 
cases and afford each veteran a reasonable opportunity for relief even if the sexual 
assault or sexual harassment was unreported, or the mental health condition was not 
diagnosed until years later. Boards are to give liberal consideration to Veterans 
petitioning for discharge relief when the application for relief is based in whole or in part 
on those conditions or experiences. The guidance further describes evidence sources 
and criteria and requires Boards to consider the conditions or experiences presented in 
evidence as potential mitigation for misconduct that led to the discharge.

	a.  Guidance documents are not limited to UOTHC discharge characterizations but 
rather apply to any petition seeking discharge relief including requests to change the 
narrative reason, re-enlistment codes, and upgrades from general to honorable 
characterizations.

	b.  An honorable discharge characterization does not require flawless military 
service. Many veterans are separated with an honorable characterization despite some 
relatively minor or infrequent misconduct.

	c.  Liberal consideration does not mandate an upgrade. Relief may be appropriate, 
however, for minor misconduct commonly associated with mental health conditions, 
including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual 
harassment; and some significant misconduct sufficiently justified or outweighed by the 
facts and circumstances.

8.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service 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)	AR20220006895


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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