ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 August 2023

	DOCKET NUMBER:  AR20230000770


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge (BCD) and a copy 
of his service record.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge)

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 he wants a copy of his service record and an upgrade to his 
discharge to be able to receive health care benefits. At the time, he was young and had 
his priorities in the wrong place. He was not focused on his career and made some 
foolish decisions. He is truly sorry and regrets his actions. He is now married with 
children and realizes that he made some crucial decisions that caused major problems 
in his life.

3.  A review of the applicant’s service record shows:

a.  On 2 August 1990, he enlisted in the Regular Army.

   b.  In a Record of Trial, dated 5 June 1995, it shows the applicant was tried by a 
general court-martial on 5 June 1995 for being absent without leave (AWOL), missing 
movement, use of marijuana and cocaine, and desertion. He pled not guilty to being 
AWOL and this charge was dismissed. He pled guilty to all other charges and was 
found guilty. He was convicted and sentenced to a reduction to the grade of E-1, 
forfeitures of pay in the amount of $550.00 per month for six months, to be confined for 
six months, and to be discharged from the service with a BCD.

	c.  Personal Action document shows his duty status changed from present for duty 
to confined to military authority on 6 June 1995.

	d.  Personal Action document shows his duty status changed from confined to 
military authority to present for duty on 3 November 1995. 

	e. General Court-Martial Order Number 7, dated 16 January 1996 affirmed the 
sentence and ordered it duly executed. Article 71(c) having been complied with the 
dishonorable discharge will be executed.

	e.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 
he was discharged from active duty on 29 February 1996, as a result of court-martial 
conviction with a BCD characterization of service. He completed 5 years, 2 months, and 
2 days of net active service. He has lost time from 6 June 1995 to 2 November 1995.

     f.  It also shows he was awarded or authorized the Army Good Conduct Medal and 
the Army Service Ribbon.  

4.  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:

After reviewing the application and all supporting documents, the Board found the relief 
was not warranted. The Board carefully considered the applicant's record of service, 
documents submitted in support of the petition and executed a comprehensive and 
standard review based on law, policy and regulation, and published Department of 
Defense guidance for liberal and clemency determinations requests for upgrade of his 
characterization of service.  Upon review of the applicant’s petition and available military 
records, the Board found insufficient evidence of in-service mitigating factors for the 
misconduct.  The applicant no provided post-service character letters of support to 
weigh a clemency determination. ABCMR 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. The Board determined, based on the preponderance of 
evidence, the character of service the applicant received upon separation was not in 
error or unjust. Therefore, relief was denied.




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 Board found 
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)

The applicant will be provided a copy of his service record.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the Army Board for Correction of Military Records 
(ABCMR) to excuse an applicant's failure to timely file within the three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at 
the time, provides for the separation of enlisted personnel.

a.	Paragraph 3-7a (Honorable discharge) states an honorable discharge is a
separation with honor. 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.	Paragraph 3-7b (General discharge) states a general discharge is a separation
from the Army under honorable conditions.  When authorized, it is issued to a member 
whose military record is satisfactory but not sufficiently meritorious to warrant an 
honorable discharge.

   c.  Paragraph 3-7c states a discharge under other than honorable conditions is an 
administrative separation from the service under conditions other than honorable.  It 
may be issued for misconduct, fraudulent entry, security reasons, or for the good of 
service in selected circumstances.

   d.  Paragraph 3-11 states a member will be given a BCD pursuant only to an 
approved sentence of a general or special court-martial. The appellate review must be 
completed and the affirmed sentence ordered duly executed. 

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military 
Department may correct any military record of the Secretary’s Department when the 
Secretary considers it necessary to correct an error or remove an injustice.  With 
respect to records of courts-martial and related administrative records pertaining to 
court-martial cases tried or reviewed under the UCMJ, action to correct any military 
record of the Secretary’s Department may extend only to correction of a record to reflect 
actions taken by reviewing authorities under the UCMJ or action on the sentence of a 
court-martial for purposes of clemency. Such corrections shall be made by the 
Secretary acting through boards of civilians of the executive part of that Military 
Department.

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. 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.  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 based on 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)	 AR20230000770

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