BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001693 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001693 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. __________x_______________ CHAIRPERSON 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. BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001693 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge (BCD). 2. The applicant states his discharge was biased; he was the victim of faulty urinalysis testing. 3. The applicant provides a self-authored letter. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. He enlisted in the Regular Army on 14 June 1979 and served as a multichannel communications systems operator. The highest rank he achieved was sergeant (SGT)/E-5. 3. Special Court-Martial (SPCM) Order Number 22, dated 2 August 1990, issued by Headquarters, Fort Hood, shows the applicant pled guilty and was found guilty of the wrongful use of cocaine. 4. The resulting sentence, adjudged on 5 June 1990, was a BCD, confinement for 2 months, and reduction to private/E-1. The sentence was approved and, except for the BCD, was ordered executed. 5. On 19 March 1991, SPCM Order Number 12, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, directed that, Article 71c of the Uniform Code of Military Justice having been complied with, the BCD portion of the sentence be duly executed. On 5 April 1991, the applicant was discharged accordingly. 6. The applicant’s DD Form 214 shows he completed 11 years, 5 months, and 21 days of creditable active military service during the period under review with lost time due to confinement from 6 June to 5 October 1990. 7. The applicant provides a letter stating he is a thirteen-year U.S. Army veteran. He served as a Communications Noncommissioned Officer (NCO) with additional duty as the Drug and Alcohol Monitoring Program NCO in Charge for Company A, 16th Signal Battalion, 3rd Brigade. It was while serving in this capacity that he tested positive for an illegal drug. He contends he had previously submitted to over 50 random urine tests during his military career at various duty stations all with negative results up until this final test. However, having knowledge of the possible punishment, he immediately requested a retest. After his commander denied his numerous requests to be retested, he elected trial by court-martial as oppose to receiving an Article 15. 8. He states his only defense was his good name and service record. He became very depressed, confused, and angry after being labeled a “deadbeat” Soldier, this led to him missing several formations. His commander eventually gave him an Article 15 and reduced him in rank prior to court-martialing him. Despite the results of his court-martial, he continues to deny ever using illegal drugs. 9. He states he recently read an internet article which found that during the 1990s over 100,000 urine tests showed a false positive result and were overturned. He asks the Board to overturn his urine test and upgraded his BCD to an honorable discharge. He is now an ordained minister and Pastor of the Community Baptist Church of Kansas City, KS. He has a Bachelor’s Degree in Ministry and is employed with a Home Health Care and Transportation Company as the Supervisor of Daily Operations. 10. The applicant did not provide the internet article or other evidence of faulty urinalysis testing related to the incident that led to his discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or a BCD. It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed. b. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Under the provisions of 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. DISCUSSION: 1. The applicant contends his BCD should be upgraded because he was the victim of faulty urinalysis testing. 2. His contention of innocence is noted; however; he pled guilty to the charges levied against him. There is no evidence in the record, nor did he provide evidence, to support his contention that the testing was faulty. He was convicted by a SPCM for the wrongful use of cocaine. Conviction and discharge were effected in accordance with applicable law and regulations. 3. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001693 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001693 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2